This Credly Credential Management Agreement (this “Agreement”) is entered into by and between Credly, Inc. (also referred to as “Credly,” “we,” “us,” or “our”) and the Issuer as referenced by the applicable Order Form (“Issuer,” “you” or “your”). This Agreement takes effect when Issuer executes an Order Form that incorporates the terms of the Agreement (the “Effective Date”). Capitalized terms used herein and not otherwise defined are defined in Section 10. Credly and Issuer may be referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
1. USE OF THE CREDLY SYSTEM.
1.1 Generally. Issuer may access and use the Credly System in accordance with this Agreement and any Order Form executed by the Parties. Terms and pricing for the Credential Packages are provided in the applicable Order Forms. The Parties will comply with the terms of this Agreement and all applicable laws, rules and regulations.
1.2 Service Level Agreements. Credly shall provide support and maintenance for the Credly System as set forth at https://info.credly.com/support-maintenance. The Credly System may be accessed by a computer with a standard technologically current web browser and internet connection. Credly shall not be responsible for any hardware, software, or networks outside of the control of Credly.
1.3 Issuer’s Access to the Credly System.
(a) Pursuant to an applicable Order Form, Credly shall provide Issuer access to the Credly System for the sole purpose of creating, managing, and issuing Credentials during the term of the applicable Order Form. Issuer shall have the ability to authorize Administrators during the term of the applicable Order Form. Administrators shall adhere to the terms and conditions of this Agreement and the Issuer Terms of Service. Issuer shall be responsible for the Administrators’ acts or omissions relating to this Agreement. Issuer shall have the ability to revoke Administrators’ access rights.
(b) Pursuant to an applicable Order Form, Issuer may purchase additional, separate accounts with Affiliate-specific branding, account analytics and a unique URL on the Credly System (“Affiliate Accounts”). Issuer is responsible for the actions of any Administrator of an Affiliate Account, and the terms of this Agreement shall apply to Affiliate Accounts.
(c) Issuer shall have the sole responsibility for creating Credentials, determining and applying the criteria for awarding Credentials to qualifying individuals or organizations (“Earners”), and revoking Credentials from Earners. Credly shall not have any obligation to review the accuracy of information entered by Issuer into the Credly System. Issuer may issue and revoke Credentials during the period which Issuer is permitted access to the Credly System.
(d) Upon issuance of a Credential by Issuer, the Earner of that Credential shall be invited to create an account on the Credly System, subject to acceptance of the Credly Terms of Service applicable at that time. Credly may communicate directly with Earners regarding the availability, management, and use of their Credentials. Each Earner may, at their discretion, enter additional Profile Information, which shall be processed in accordance with applicable laws and regulations and the Credly Terms of Service. Credly may, at its discretion, immediately discontinue Earner’s access to the Credly System if the Earner violates the Credly Terms of Service.
(e) Issuer grants Credly the right to host, display, maintain, and display Credentials issued by Issuer. This right survives the termination of this Agreement and any applicable Order Form. Unless Issuer has revoked a Credential from an Earner, Credly may continue to host, maintain, and display the Earner’s Credential unless and until 1) the Earner violates the Credly Earner Terms of Service, or 2) a legal tribunal orders that Credly remove the Credential or data relating to the Earner of the Credential, or 3) the Earner requests that the Credential be removed from the Credly System.
1.4 Restrictions on Issuer’s Access to the Credly System.
(a) Credly may, at its sole discretion, immediately remove any Credential on the Credly System that contains, consists of, or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.
(b) Neither Issuer nor any Administrator will use the Credly System in any manner or for any purpose other than as expressly permitted by this Agreement. Neither Issuer nor any Administrator will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of the Credly System or any Credly Content, (b) reverse engineer, disassemble, or decompile the Credly System or apply any other process or procedure to derive the source code of any software included in the Credly System (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Credly System in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Credly System. Issuer may only use the Credly Marks in accordance with the Trademark Use Guidelines.
2. SECURITY AND DATA PRIVACY.
2.1 Applicable Laws. The Parties shall act in accordance with all applicable laws and regulations relating to the security and privacy of Personal Information of Earners. This Agreement incorporates the Credly Data Processing Addendum (“DPA”), available at https://info.credly.com/data-processing-addendum, when the General Data Protection Regulation 2016/679 (“GDPR”) applies to Issuer’s use of the Credly Sysetm to process Issuer Data (as defined in the DPA).
3. FEES AND PAYMENT.
3.1 Fees. Issuer will pay Credly for Credential Packages in accordance with the reimbursement and payment schedules set forth in any Order Form (the “Fees”). Credly will invoice Issuer for the services and Credential Packages provided on an annual basis at the beginning of each contract year.
3.2 Payment Term. Issuer shall pay all invoices no later than 45 days from the date of invoice.
3.3 Suspension of Services. If any payment due to Credly is more than 30 days overdue, Credly has the right in its sole discretion, in addition to any other remedies under this Agreement or pursuant to applicable law, to suspend all services being provided under any applicable Order Forms without further notice to Issuer, until Issuer has paid the full balance owed.
4. TERM; TERMINATION
4.1 Term. This Agreement will commence on the Effective Date and will remain in effect until the last Order Form is expired or terminated. Access to the Credly System shall be granted on the effective date indicated in the applicable Order Form and continue for the term specified therein.
4.2 Termination. This Agreement and any Order Form will terminate upon written notice to the breaching Party for a material breach of the Agreement or Order Form, which breach, if capable of being cured, remains uncured for a period of 30 days after receipt of written notice specifying the breach.
4.3 Effect of Termination. A Credential issued by Issuer, accepted by an Earner, and not revoked by Issuer at the time of termination will remain on the Credly System to be hosted, maintained and displayed by Credly, subject to the conditions described in Section 1.3(e) of this Agreement.
5. CONFIDENTIAL INFORMATION; RIGHTS, USE, AND OWNERSHIP
5.1 Definition. The Parties acknowledge that both parties may own, utilize, and develop certain Confidential Information (as defined herein) during the course of the Agreement and in furtherance of their respective obligations thereunder, which is privileged and confidential. “Confidential Information” includes any information in any form marked or designated as confidential and any information in any form that a reasonable person would understand to be confidential. Confidential Information includes, but is not limited to, trade secrets, computer programs and software (including source codes), processes, technical information, know-how, plans, data, software, specifications, identity of customers and suppliers, financial information, and, Software and business affairs of the Party which is treated as confidential by such Party; provided, however, that Confidential Information will not include information which, as established by documentary evidence is (a) known or becomes known to the public in general (other than by a breach of this provision), (b) is or has been independently developed or conceived by the other Party without the use of the first Party’s Confidential Information, or (c) is or has been made known or disclosed to the other Party by a third person without a breach of any obligation of confidentiality such third person may have to the first Party.
5.2 Use. Disclosure. The Parties agree that both parties will disclose Confidential Information to the other Party only to the extent that such information is necessary to provision of the Services. With respect to any Confidential Information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) the Receiving Party will not report, publish, transfer or otherwise disclose such information to any person, company or other entity (except that such disclosure may be provided to an affiliated or contracted or subcontracted entity or person who is bound by formal contract, including confidentiality provisions of materially similar nature, with Receiving Party and solely for the purposes described in Section 1 of this Agreement) without the prior written consent of the Disclosing Party or except as otherwise expressly permitted by the terms of this Agreement. Upon written request of the Disclosing Party after expiration or earlier termination of this Agreement, unless otherwise stated in this Agreement, each Party will destroy, and provide written certification of such destruction, or return to the other Party all Confidential Information provided to it during the course of or in connection with this Agreement and which is in its possession. The parties acknowledge that no license is created by the use of the Confidential Information beyond that which is contemplated within the scope of this Agreement.
5.3 Ownership of Intellectual Property. Nothing in this Agreement shall operate as a transfer of any intellectual property developed by a Party prior to the execution of this Agreement. Issuer shall own all trademarks and copyrights in text and images developed by Issuer that are incorporated into Issuer's Credential designs. Credly is the sole owner of the Credly System and all Credly-created services, enhancements, Confidential Information created by Credly, data collection, processing, analysis, review, and reporting tools; data processing and management systems or processes, including all tangible and intangible items, trade secrets, know-how, processes, and all copyrights and other intellectual property rights pertaining thereto (collectively, the “Credly Intellectual Property”). Issuer agrees that it will not market, parcel, distribute, sell or otherwise communicate the Credly Intellectual Property without the express written consent of Credly.
5.4 Suggestions. If Issuer provides any suggested improvements to the Credly System (“Suggestions”), Credly will be entitled to use the Suggestions without restriction. Issuer hereby irrevocably assign to Credly all right, title, and interest in and to the Suggestions and agree to provide Credly any assistance Credly requires to document, perfect, and maintain our rights in the Suggestions.
6.1 Indemnification by Credly. Credly shall defend and indemnify Issuer from and against all third-party claims 1) arising from Credly’s erroneous modifications, issuances, or deletions of Credentials due to no fault of the Issuer, 2) arising from Security Incidents attributable to Credly failure to abide by the provisions of the DPA, and 3) alleging that the Credly System infringes all elements of a United States patent claim, copyright, or trademark. Credly agrees at its own expense to defend, or at its option, settle any such claim, suit, or proceeding brought against Issuer. This obligation to indemnify does not extend to any claims of infringement to the extent resulting from (i) Issuer’s modification of any Credly System or any part thereof; (ii) any aspect of Issuer’s software, documentation, not designed or developed by Credly; (iii) any claim arising from any instruction, information, design, or materials furnished by Issuer to Credly; or (iv) Issuer’s continuing the allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement while not materially diminishing the performance or capabilities of the Credly System. The provisions of this Section 6 set forth the Credly's exclusive liability, and Issuer's exclusive remedy for infringement or other violation of the intellectual property rights of any third party. Credly shall not have an obligation to indemnify Issuer for third party claims alleging that a Credential issued by Issuer or Credential template created by Issuer contains text or images that infringe a third party intellectual property right.
6.2 Indemnification against Claims Relating to Rewarding of Credentials and Intellectual Property Infringement. Issuer will defend and indemnify Credly from and against third-party claims arising out of a decision by Issuer or Administrator to reward, deny, or revoke a Credential. Issuer will defend and indemnify Credly from and against third-party claims alleging that an Issuer Credential template violates the intellectual property rights of a third party.
6.3 Procedure for Indemnification. The obligations under this Section 6 will apply only if the Party seeking defense or indemnity: (a) gives the other Party prompt written notice of the claim; (b) permits the other Party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other Party (at the other Party’s expense) in the defense and settlement of the claim. In no event will a Party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other Party.
Credly warrants that the Credly System will work in material compliance with its intended purpose. If there is a breach of the foregoing warranty, Credly shall, at Credly’s election, within thirty (30) days from the date Issuer notifies Credly of the non-conformance (i) correct the nonconformance in the Credly System so that it operates in accordance with its intended purpose; (ii) replace any non-conforming component of the Credly System with component(s) that performs in accordance with its intended purpose; or (iii) in the event that Credly reasonable determines that neither of the foregoing is practicable, refund all amounts Issuer has pre-paid to Credly for the non-conforming component of the Credly System. The foregoing are Issuer’s sole remedies and Credly’s exclusive obligations in connection any non-conformance of, the Credly System during the term of this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CREDLY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CREDLY EXPRESSLY AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. Credly does not warrant (i) uninterrupted or error-free operation of the Credly System or (ii) that Credly will correct all defects or prevent third-party disruptions. The warranties hereunder will not apply if there has been misuse, modification, damage not caused by Credly, failure to comply with instructions provided by Credly, or if limited by an Order Form. Issuer is responsible for determining its compliance with applicable laws and regulations and Credly makes no warranty or representation regarding Issuer’s compliance therewith.
8. LIMITATION OF LIABILITY
Except for any intentional infringement of a Party’s Intellectual Property rights, misappropriation of a Party’s Confidential Information as provided in Section 5, or a party’s indemnification obligations as provided in Section 6.3, in no event will either Party hereto be liable to the other Party under this Agreement or otherwise for any special, consequential, punitive, exemplary, reliance, indirect or incidental damages, whether under theories of contract, tort, or otherwise, even if such damages were foreseeable. In addition, in no event will either Party’s liability (exclusive of fees payable) arising out of or related to this Agreement exceed the sum of fees paid by Issuer under the applicable Order Form.
9.1 Entire Agreement. This Agreement, together with all Order Forms and all referenced and attached exhibits, contains the entire agreement between the parties hereto, supersedes all prior agreements, arrangements, or understandings between the parties and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be modified or amended except by a written agreement duly signed by persons authorized to act on behalf of the Party to be charged with the amendment.
9.2 Force Majeure. Neither Party will be liable to the other or be deemed to be in breach of this Agreement for any failure or delay in rendering performance arising out of causes beyond its reasonable control and without its fault or negligence. Such causes may include acts of God or of a public enemy, acts of terrorism, earthquakes, floods, fires, epidemics, riots, quarantine restrictions, strikes, freight embargoes, or unusually severe weather. Dates or times of performance will be extended to the extent of delays excused by this Section. The parties will promptly inform and consult with each other as to the existence and nature of such delay. A force majeure event will not relieve existing payment obligations.
9.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, other than its conflicts of laws provisions. The Parties irrevocably and unconditionally consent to venue in New York (and hereby waive any claims of forum non conveniens with respect to such venue) and to the exclusive jurisdiction of competent New York state courts or federal courts in New York for all litigation which may be brought with respect to the terms of, and the transactions and relationships contemplated by, this Agreement.
9.4 Independent Contractors; Non-Exclusive Rights. Credly and Issuer are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither Party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both Parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other Party, and (b) to assist third Party developers or systems integrators who may offer products or services which compete with the other Party’s products or services.
(a) To Issuer. Credly may provide any notice to Issuer under this Agreement by: (i) posting a notice on the Credly System; or (ii) sending a message to the email address then associated with Issuer’s primary account. Notices Credly provides by posting on the Credly System will be effective upon posting and notices Credly provides by email will be effective when Credly sends the email. It is Issuer’s responsibility to keep Issuer’s email address current.
(b) To Us. To give Credly notice under this Agreement, Issuer must send Credly a message to email@example.com. Notices provided to Credly by email will be effective when Issuer sends the email.
9.6 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
9.7 No Waivers. No failure or delay in (i) exercising any right or remedy; or (ii) requiring satisfaction of any condition under this Agreement, and no course of dealing between the parties, operates as a waiver or estoppels of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person. The rights and remedies of the parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity or by statute.
9.8 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
10.1 “Active Earner” means an Earner that can be issued unlimited Credentials in one year pursuant to an applicable Order Form.
10.2 “Affiliate” means any entity that controls or is under common control by or with a Party. A corporation or other entity will be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest in such corporation or entity.
10.3 “API” means an application program interface.
10.4 “Credential” means a digital representation of an achievement issued to an Earner by Issuer. Credentials include an image and metadata describing the achievement and may include supporting evidence and related information.
10.5 “Credential Package” has the meaning set forth in the applicable Order Form.
10.6 “Credly Content” means software (including machine images), data, text, audio, video or images Credly makes available in connection with the Credly System to allow access to and use of the Services, including APIs; WSDLs; documentation including user guides and administrative guides as updated by Credly from time to time; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel).
10.7 “Credly System” means Credly’s proprietary software as a service platform that can be used to create, manage, and display Credentials, including related hardware and software (including associated APIs), including all updates, modifications and enhancement thereto. The Credly System includes all Credly Marks and Credly Content.
10.8 “Credly Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Credly that Credly may make available to Issuer in connection with this Agreement.
10.9 “Earner” means an individual or organization who is issued a Credential by Issuer.
10.10 “Historical Credentials” means Credentials issued pursuant to an applicable Order Form to account for achievements earned prior to the execution of said Order Form.
10.11 “Order Form” means each document pursuant to which Issuer orders, and Credly accepts, Credential Packages.
10.12 “Personal Information” means any information, including information in electronic form, relating to a living person who can be identified from those data.
10.13 “Administrator” means any individual or entity that accesses or uses the Credly System under any Issuer account. The term “Administrator” does not include individuals or entities when they are accessing or using the Credly System or any Content under an Earner account or their own account, rather than under an Issuer account.