Credly's Credential Management Agreement

Revised: February 2019 

Version 1.3

This credential management agreement (the “Agreement”) is entered into between the customer (“Issuer”) named in the Credly Credential Package Order Form (the “Order Form”) and Credly, Inc., a Delaware corporation with offices at 349 5th Avenue, Suite 726, New York, NY 10016 (“Credly”). Credly and Issuer may be referred individually as a “Party” and collectively as the “Parties.”

1.     GENERAL

1.1 General

(a) Under this Agreement, Issuer may order Credential Packages. Terms and pricing for the Credential Packages are provided in Order Forms. Credential Packages may include Credential allotments, implementation services, Credential templates, training, and other products and services relating to the Issuer’s Credential program.

(b) This Agreement, Attachments, and applicable Order Forms are the complete agreement regarding transactions by which Issuer acquires Consulting Services and Credential Packages.

1.2 Definitions. Capitalized terms not otherwise defined herein have the meanings set forth below

(a) “Active Earner” means the number of individuals that can be issued a Credential each year pursuant to an applicable Order Form.

(b) 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.

(c)Affiliate Account” means an additional, separate account with Affiliate-specific branding, account analytics and a unique URL on the Credly System.

(d)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

(e)Credly System” means the proprietary software as a service platform belonging to Credly that can be used to create, manage, and display Credentials, including related hardware and software (including APIs), third-party software, or systems, including all updates, modifications and enhancement thereto.

(f)Earner” means an individual or organization who is issued a Credential by Issuer

(g) “Earner Information” means the information relating to an Earner and their Credentials provided to Credly by Issuer (not including Profile Information).

(h) “Historical Credentials” means Credentials issued pursuant to an applicable Order Form to account for achievements earned prior to the execution of said Order Form.

(i)Profile Information” means all information made available or provided to Credly by an

(j)Personal Information” means any information, including information in electronic form, relating to a living person who can be identified from those data.

(k)User” means an individual or entity who is authorized by the Issuer to access the Credly System on behalf of the Issuer or Affiliate under the Issuer’s primary account or an Affiliate Account.


2.     The Credly System
 

2.1 Description of the Credly System. 

(a) The Credly System is a software service that allows Issuer to create, manage, and issue Credentials. 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.

(b) Credly shall provide support and maintenance for the Credly System as set forth at www.credly.com/support-maintenance.

2.2 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 Users during the term of the applicable Order Form. Users shall adhere to the terms and conditions of this Agreement and Issuer shall be responsible for the Users’ acts or omissions relating to this Agreement. Issuer shall also have the ability to revoke Users’ access rights.

(b) Pursuant to an applicable Order Form, Issuer may purchase additional Affiliate Accounts. Issuer is responsible for the actions of any User of an Affiliate Account, and all of 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 Earners, and revoking Credentials from Earners. Credly shall have no obligation to review the accuracy of information entered by Issuer into the Credly System. Issuer shall have the ability to 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. Earners 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) Upon issuance of a Credential, 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 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.

2.3 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) Users may not access, use or view the Credly System for any purpose other than to create, manage, and issue Credentials. Except as expressly set forth hereunder, Issuer and Users may not copy, modify, create derivative works from, download, republish, reproduce, transmit or distribute any aspect of the Credly System, whether public or nonpublic, except for Credentials and Credential templates, without the written permission of Credly. Issuer or Users may not attempt to reverse engineer any aspect of the Credly System or attempt to bypass or circumvent any measures employed to prevent or limit access to the Credly System, its underlying algorithms, programming, or other information related to the Credly System. Issuer and Users shall take reasonable steps to ensure that individuals that are not Users do not view, access, or copy any aspect of the Credly System. Issuer and Users shall not use, evaluate or view the Credly System for the purpose of designing or creating any software program or system, in whole or in part, with features or functions similar to any function, feature, or aspect of the Credly System.

(c) Issuer and Users shall not use any device, software or routine that interferes or attempts to interfere with the normal operation of the Credly System. Credly shall have the right to monitor and review any information transmitted or received through the Credly System. Credly reserves the right to take reasonable action to remedy a violation of this Agreement.

3.     PrivacY

3.1 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 GDPR applies to Issuer’s use of the Credly System to process Issuer Data (as defined in the DPA). 

3.2 Issuer shall obtain all consents required by any applicable law from Earners for Credly to store, transfer, and process Earner Information pursuant to this Agreement.

3.3 Credly shall obtain all consents required by any applicable law from Earners to store, transfer, and process Profile Information. Credly will provide a clear and conspicuous notice regarding the uses of Personal Information and will only contact Earners in accordance with the Earners’ expressed consents.

4.     Term and 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

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) 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 2.2(e) of this Agreement.

(b) Upon termination Credentials issued by all Third-Party Issuers will be deemed to be Credentials issued by Issuer and subject to Section 4.2 of this Agreement.

5.     Payments

5.1 - Fees. Issuer will pay Credly for Consulting Services and Credential Packages in accordance with the reimbursement and payment schedules set forth in any Order Form or addendum attached hereto (the “Fees”). Credly will invoice Issuer for the Consulting Services and Credential Packages provided on an annual basis at the beginning of each contract year.

5.2 - Payment Term. Payment to Credly is due 30 days from the date of Payments must be made via an “Automated Clearing House” (ACH) transaction as set forth in the applicable invoice. If any undisputed fee is not paid by the due date thereof, interest will accrue from such due date at a rate equal to 1.5% per month. Issuer will pay such interest upon demand. The amount of interest payable pursuant to this provision will not exceed the maximum effective rate of interest permitted to be paid under applicable law.

5.3 - 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, plus any late charges due in accordance with Section 5.3.

6.     Confidential Information; Rights, Use, and Ownership

6.1 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.

6.2 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 2 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.

6.3 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. Moreover, it is acknowledged and understood that Credly will have a royalty-free, perpetual license to use or incorporate into the Credly Intellectual Property any suggestions, enhancements, requests, recommendations, or other feedback provided by Issuer.

7.     Indemnification; Limitation of Liability; and Disclaimer

7.1 Indemnification of Credly. Issuer will defend and indemnify Credly and its officers, directors, employees, agents, consultants, affiliates, and representatives harmless from and against any and all actions, suits, proceedings, liabilities, losses, damages, judgments, fines, amounts paid in settlement, losses, costs and expenses (each a “Claim”) which may arise out of grossly negligent acts or willful misconduct or omissions of Issuer or its Users, officers, directors, employees, agents, consultants, affiliates, and representatives in the performance of Issuer’s responsibilities under this Agreement.

7.2 Indemnification of Issuer. Credly will defend and indemnify Issuer and its officers, directors, employees, agents, consultants, affiliates, and representatives harmless from and against any and all Claims which may arise out of grossly negligent acts or willful misconduct or omissions of Credly or its officers, directors, employees, agents, consultants, affiliates, and representatives in the performance of Credly’s responsibilities under this Agreement.

7.3 Indemnification against Patent Infringement Claims. Credly shall defend and indemnify Issuer from and against all third-party claims alleging that the Credly System infringes all elements of a United States patent claim. 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.

7.4 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 User 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.

7.5 Limitations of Liability. Except for any intentional infringement of a party’s Intellectual Property rights or misappropriation of a party’s Confidential Information as provided in Section 6, 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.

7.6 Procedure for Indemnification. Any party seeking indemnification under this Section must provide written notice thereof to the Indemnifying Party within fifteen (15) calendar days following service of the complaint or other process. The defense and/or settlement of a claim by the Indemnified Party without such opportunity to the Indemnifying Party shall relieve the Indemnifying Party of any further obligation to indemnify the Indemnified Party with regard to such claim. The Indemnifying Party shall, at its own expense, undertake the defense of such proceedings, claims, or demands through counsel of its choosing. Further, the Indemnifying Party shall have the right to enter into and conclude settlement negotiations, provided that no settlement will be made which imposes any material obligations on the Indemnified Party (other than the payment of money by the Indemnifying Party made on behalf of the Indemnified Party), without prior written consent of the Indemnified Party. If a court or similar tribunal requires consent of the Indemnified Party, such consent shall not be unreasonably withheld. Either party will reasonably cooperate with the other party to resolve any actual or alleged third-party claims as promptly as is reasonable.

8.     Warranties

8.1 Warranties. Credly warrants that the Credly System will work in accordance with its intended purpose. 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.

9.     Miscellaneous

9.1 Independent Contractor Status. Credly is an independent contractor and is not an employee, agent, representative, officer, or partner of Issuer. Credly does not undertake to perform any of Issuer’s regulatory obligations, or assume any responsibility for Issuer’s operations or business. Except as expressly set forth in writing, neither party has power or authority to act for, represent, or bind the other party in any manner. Nothing contained in this Agreement will be deemed to create any relationship between the parties other than that of a principal and independent contractor.

9.2 Waiver. 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.

9.3 Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by electronic mail (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth on the signature page below (or to such other addresses and facsimile numbers as a party may designate by notice to the other party).

9.4 Entire Agreement and Modification. This Agreement, together with 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.

9.5 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.

9.6 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

9.7 Order of Precedence: If there is a conflict between or among this Agreement, its Exhibits, and any Order Form, the following descending order of precedence shall apply: An Order Form(s) and any Exhibit(s) thereto; then this Agreement and the Exhibits thereto.

9.8 Survival. Notwithstanding anything to the contrary contained in this Agreement, the provisions of Sections2(d), 2.2(e), 2.3, 3, 4.3, 6, 7, and 9 will survive any termination, expiration or cancellation of this Agreement, regardless of the basis for such termination or cancellation.

9.9 Governing Law and Venue. 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.

9.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same instrument, and will become effective when there exist copies hereof (by facsimile, electronic mail, or otherwise) which, when taken together, bear the authorized signatures of each of the parties