Credential Management Agreement

This Credential Management Agreement (the “CMA”) is entered into as of the date of the last signature to the Agreement (the “Effective Date”), by and between Credly, Inc., a Delaware corporation with offices at 368 9th Avenue, 6th Floor, New York, NY 10001 (“Credly”), and the entity set forth on an executed Order Form (“Client”). Credly and Client may be referred individually as a “Party” and collectively as the “Parties.”

1.     General

a.      Pursuant to this CMA, Client may order specific Credly Services as set out in a separate, mutually agreed and executed Order Form. This CMA incorporates Service-specific terms in the form of addenda corresponding to the Services purchased and set forth on the applicable Order Form.

b.     Affiliates of the Parties may enter into Order Forms governed by this CMA and its applicable addenda. In such circumstances, references to “Client”, “Credly” or a “Party” in this CMA shall be read, for the purposes of such Order Form, to mean the specific Client or Client Affiliate or Credly or Credly Affiliate (respectively; and as applicable) identified in and executing such Order Form.

c.      This CMA incorporates by reference those terms in the following documents in effect as of the effective date of the applicable Order Form, collectively referred to as the “Agreement”, that consists of:

i.        the Order Form;

ii.       the DPA, as applicable;

iii.     the CMA and its Service-specific addenda.

d.      In the event of a conflict, the order of precedence is as set out above.

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

i.     "Active Earner" means an Earner who earns a Credential from Client during a given contract year. 

ii.     “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.

iii.     “Authorized User” means an individual or entity who is authorized by Client to access the Services on behalf of the Client or Affiliate.

iv.     "Client Data" means the data, including Personal Data, that is uploaded to the Credly Services by the Client. Client Data shall not include Earner Data.

v.     “Credential” means a digital representation of an achievement issued to an Earner by an Issuer. Credentials include an image and metadata describing the achievement and may include supporting evidence and related information.

vi.     "Credly API" means the application program interface that enables transfer of data between Client systems and the Credly Services.

vii.     “Earner” means an individual or organization who has earned a Credential using the Services.

viii.     “Earner Data” means the data of an Earner that is processed by Credly pursuant to an agreement between Credly and that Earner.

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

x.     “Issuer” means an organization or individual using the Services to award Credentials to Earners.

xi.     “Order Form” means each document pursuant to which Client orders, and Credly accepts, access to the Services,

xii.     “Personal Data” means any information, including information in electronic form, relating to a living person who can be identified from those data.

xiii.     “Services” means the products and services offered by Credly or its Affiliates via its software, websites and offerings to the extent and for the term stated in the Order Form.

f.      Data Processing Addendum. 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”) located at https://info.credly.com/data-processing-addendum and applies to Client’s use of the Services to process Client Data (as defined in the DPA).

g.     API. In accessing the Services, if Client opts to send and receive data via the Credly API, then the Agreement incorporates by reference the Credly’s API Terms of Service (“API TOS”) located at https://info.credly.com/api-terms-of-service.

h.     Service Levels. The Agreement incorporates by reference the Credly’s Service Level Agreement (“SLA”) located at https://info.credly.com/support-maintenance. Credly shall provide support and maintenance for the Services as set forth therein.

i.       Applicable Addenda. The Agreement will incorporate one or more of the following product addenda as indicated on the Order Form: i) Acclaim Addendum; ii) Workforce Addendum; iii) Talent Match Addendum; iv) Credential Education Program Addendum. Purchases of Credly Workforce shall incorporate by reference both the Acclaim Addendum and the Workforce Addendum.

2.     Access to the Services

a.      Client Responsibilities. Client is responsible for the actions of Authorized Users. Client shall not misrepresent the identity or nature of Authorized Users. Authorized Users shall keep login information confidential. Client may not provide access to the Services to any person who is not an Authorized User. Client shall not issue Credentials to Earners under thirteen (13) years of age.

b.     Right to Remove. Credly may remove any Credential on the Services 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. Credly reserves the right to take down any Credential that is reasonably alleged by a third party to infringe any intellectual property right. 

c.      No right to Copy. Except as expressly set forth hereunder, Client may not copy, modify, create derivative works from, download, republish, reproduce, transmit or distribute any aspect of the Services, whether public or nonpublic, except for Client-designed CredentialsCredentials and Credential templates, without the written permission of Credly. Client and Authorized Users shall not use, evaluate or view the Services 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 Services.

d.     No Malware. Client shall not use any device, software or routine that interferes or attempts to interfere with the normal operation of the Services. Client is prohibited from:

i.        Introducing malware, spyware or any other malicious code into the Credly Software or otherwise interfere with the operation of the Credly Software or any device or system or breach or circumvent any security measure of Credly or a third party;

ii.      Interfering with the operation of, or place an unreasonable load on, the Credly Software (e.g., spam, denial of service attack, viruses, gaming algorithms);

iii.     Reverse engineering, decompiling, disassembling, deciphering or otherwise attempting to derive the source code for the Services; and

iv.     Except as expressly authorized by Credly in writing:

1.       implying or state that Client is affiliated with or endorsed by Credly; or

2.      engaging in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Credly Software; or

3.      renting, leasing, loaning, trading, selling, or otherwise monetizing the Services or related data or access to the same.

e.      Standard Browser. The Services 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.

 3.     Term and Termination

a.      Term. The Agreement will commence on the Effective Date and will remain in effect until the last Order Form is expired or terminated. Access to the Services shall be granted on the effective date indicated in the applicable Order Form and continue for the term specified therein.

b.     Termination. The 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.     Payments

a.      Fees. Client will pay Credly in accordance with the payment schedules set forth in any Order Form (the “Fees”). The per-unit Fees during any renewal term may increase by up to 5% above the applicable pricing in the prior term. Any renewal in which subscription volume for any Services has decreased from the prior term may result in Fees at renewal without regard to the prior term’s per-unit Fee.

b.     Payment Term. Client shall pay all invoices no later than thirty (30) days from the date of invoice. Payments must be made via an “Automated Clearing House” (ACH) transaction or by check unless otherwise set forth in the applicable Order Form.

c.      Invoicing. Credly will invoice Client at the Effective Date of the applicable Order Form and annually thereafter at the beginning of each contract year.

d.     Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement.

e.     Travel and Expenses. Credly may not incur any travel or expenses related to the provision of the Services to Client under this Agreement without prior approval by Client.  

5.     Confidential Information

a.      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, Client-specific analytic outputs provided by Credly (collectively, “Client Reports”), 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; provided, however, that Confidential Information will not include information which, as established by documentary evidence is (i) known or becomes known to the public in general (other than by a breach of this provision), (ii) was rightfully in the Recipient's possession at the time of disclosure without restriction on use or disclosure; (iii) is or has been independently developed or conceived by the other party without the use of the first party’s Confidential Information, or (iv) was rightfully obtained by the Recipient from a third party.

b.     Use, Disclosure. Each Party (a “Recipient”) will keep confidential the Confidential Information of the other Party (the “Discloser”), using the same degree of care it uses to protect its own information of like nature, but no less than a reasonable degree of care. Recipient will use Discloser’s Confidential Information internally solely for the purpose of performing its obligations and/or receiving the benefit of its rights in accordance with the terms of this Agreement and applicable Order Form or as may be agreed upon in writing by Discloser. During an after the term, each party will: (i) use Confidential Information solely for the purpose for which it is provided; (ii) not disclose such Confidential Information to a third party, except on a need-to-know basis to Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (iii) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that each Party protect its own Confidential information of a similar nature (collectively, “Representatives”). Each Party shall be responsible for the acts and omissions of its Representatives with respect to such Confidential Information and their compliance with the confidentiality obligations herein. Recipient may disclose Discloser’s Confidential Information pursuant to a valid order or requirement of a court or government agency if (iv) Recipient gives (where allowed by law to do so) prompt written notice to Discloser to give Discloser the opportunity to prevent disclosure or protect Discloser Confidential Information, (v) the Recipient making such disclosure shall reasonably cooperate with any efforts by the Discloser to seek confidential treatment of the information to be disclosed by the Recipient and (vi) no such information shall otherwise be divested of its status, either retroactively or thereafter, as Confidential Information except to the extent otherwise required by law. 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.     Intellectual Property

a.      Credly 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. Credly owns all rights, title, and interest in and to the Services and all Credly-created services, enhancements, data collection, processing, analysis, review, and reporting tools; Credly-created data processing and management systems or processes, including all tangible and intangible items, trade secrets, know-how, processes, trademarks and all copyrights and other intellectual property rights pertaining thereto (collectively, the “Credly Intellectual Property”). Client agrees that it will not market, parcel, distribute, sell, sub-license or otherwise communicate the Credly Intellectual Property without the express written consent of Credly. Credly may incorporate into the Credly Intellectual Property any suggestions, enhancements, requests, recommendations, or other feedback provided by Client on a royalty-free, perpetual basis. Client may only use Credly’s trademarks in accordance with the Trademark Usage guidelines found at https://info.credly.com/trademark-and-brand-use.

b.     Client Intellectual Property. Client shall own or have rights to all trademarks and copyrights in text and images that are incorporated into Client's Credential designs and other Intellectual Property pertaining thereto (“Client Intellectual Property”). Client Intellectual Property shall include Client Reports. Credly may use Client Data for the purposes of measuring usage and performance of the Services or identifying trends not specific to Client or Client’s usage of the Services.

c.      Changes to the Services. Credly reserves the right to upgrade, update or discontinue any aspect or feature of a Service in whole or in part; provided, however, that if Credly discontinues a Service in whole during the term of an Order Form, then Credly will provide Client with an alternative or replacement service.

7.     Indemnification

a.      Indemnification. Credly shall defend and indemnify Client from and against all third-party claims (i) arising from acts of gross negligence, willful misconduct, or fraud committed by Credly; (ii) arising from Security Incidents attributable to Credly failure to abide by the provisions of the DPA; or (iii) alleging that the Services infringe a third party’s 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 Client. This obligation to indemnify does not extend to any claims of infringement to the extent resulting from (1) Client’s modification of the Services; (2) any aspect of Client’s software, documentation, not designed or developed by Credly; (3) any claim arising from any instruction, information, design, or materials furnished by Client to Credly; or (4) Client’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 Services. Credly shall not have an obligation to indemnify Client for third party claims alleging that a Credential issued by Client or Credential template created by Client contains text or images that infringe a third-party intellectual property right.

b.     Indemnification against Claims Relating to Intellectual Property Infringement. Client will defend and indemnify Credly from and against third-party claims alleging that a Client Credential template violates the intellectual property rights of a third party.

c.      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 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.     Limited Warranties And Disclaimer

a.     Mutual Representations. Each Party represents and warrants that (i) it has the legal power and authority to enter into this Agreement; and (ii) it will comply with all relevant laws, regulations, and industry standards in the conduct of its actions regarding the subject-matter of this Agreement and their respective businesses; and (iii) no authorization or approval from any third party is required in connection with its execution of the Order Form.

b.     Credly Warranties. Credly warrants that: (i) during the applicable Term, the Services, when used as authorized under the Agreement, will perform substantially in conformance with the specifications associated with the applicable Services; and (ii) Credly will not introduce files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses into Client’s system. Client sole and exclusive remedy for any breach of these warranties by Credly is for Credly to repair or replace the affected Services to make them conform, or, if Credly determines that the foregoing remedy is not commercially reasonable, then either Party may terminate the Agreement.

c.      Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE AGREEMENT, CREDLY: (i) MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (ii) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; AND (iii) DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR MEET CLIENT’S REQUIREMENTS. CLIENT HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CREDLY TO ANY THIRD PARTY

9.     LIMITATIONS OF LIABILITY

a.     IN NO EVENT WILL EITHER PARTY OR THEIR THIRD PARTY PROVIDERS 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. EXCEPT FOR (i) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (ii) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (iii) THE REVERSE ENGINEERING, OR MISAPPROPRIATION OF EITHER PARTY’S INTELLECTUAL PROPERTY, 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 AND WITHIN TWELVE (12) MONTHS PRIOR TO THE DATE OF WHICH SUCH CLAIM ARISES.

10.  Dispute Resolution

a.      Dispute Resolution Process. Subject to the Trade Secrets and Breach of Confidentiality Exception section below, any dispute arising out of or relating to this Agreement, whether based on contract, tort, or any other legal or equitable theory, will be resolved as follows: Either party will notify the other party of the dispute, and provide a detailed description of the basis for the dispute as well as any relevant supporting documents. Senior management of each party will then attempt to resolve the dispute. If the parties do not resolve the dispute within 45 days of the initial dispute notice, either party may provide notice of its demand for formal dispute resolution through non-binding mediation. Within 30 days after the formal dispute resolution demand, the parties will meet for one day with an impartial mediator selected by mutual agreement and consider dispute resolution alternatives other than litigation. If the parties cannot agree on a mediator, they will each select one nominator, who must not at that time be employed by either party, and the two nominators will agree on and appoint the mediator. If the parties do not resolve the dispute or agree on an alternative method of dispute resolution within 60 days after the formal dispute resolution demand, either party may begin litigation proceedings.

b.     Trade Secrets and Breach of Confidentiality Exception. Either party at any time may seek an injunction or other equitable remedies against the other party for misappropriation of trade secrets or breach of confidentiality obligations without complying with the dispute resolution process in the Dispute Resolution Process section.

11.  Miscellaneous

a.      Independent Contractor Status. Credly is an independent contractor and is not an employee, agent, representative, officer, or partner of Client. Credly does not undertake to perform any of Client’s regulatory obligations or assume any responsibility for Client’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.

b.     Assignment. Either party may assign this Agreement in whole or in part (i) to an Affiliate; (ii) in connection with a merger where the contracting entity does not survive such merger, or (iii) in connection with the sale of all or substantially all of the contracting entity's assets related thereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party's prior written consent. Any assignment in contravention of this section is void.

c.      Publicity. Neither Party will use the others’ name, trademarks or logo, in any press release, advertisement, or other promotional or marketing material or media, whether in written, oral, electronic, visual, or any other form, without, in each case, prior written consent.

d.     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.

e.      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 sent by electronic mail to the address set forth on the signature page below (or to such other email addresses as a Party may designate in confirmed written notice to the other Party).

f.      Entire Agreement And Modification. The CMA, together with all Order Forms and all referenced and attached addenda, and DPA 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. No confirmation, shipment or delivery docket or purchase order terms, or other similar document will vary, prevail over or form part of the Agreement. If any document referred to in this clause purports to govern or apply to the provision of Services subject of the Agreement (whether issued prior to or after the formation of the Agreement) such document is expressly rejected and shall be deemed null and void and of no legal effect. This applies even if such document expressly purports to prevail over the terms of the Agreement.

g.     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.

h.     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.

i.       Survival. Notwithstanding anything to the contrary contained in this agreement, the provisions of sections 1(g), 2(b), 6(a), 7, 8(c), 9, 10, and 11 will survive any termination, expiration or cancellation of this agreement, regardless of the basis for such termination or cancellation.

j.       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.