Last Updated: July 30, 2018
This User Agreement (“Agreement”) is entered into by and between NJAWI (NJAWI) and any individual or entity (“Member”) prior to Member’s use of the Drafting and Engineering Service. This Agreement governs the use of the Membership benefits and any Professional Services (collectively, the “Services”) by Member, whether on a free or paid basis. If Member is a direct competitor to NJAWI Member is not permitted or authorized to use the Services.
1.1 Subject to this Agreement and in consideration of the fees specified in any Order, NJAWI will make the Membership benefits available to Member throughout the Term. NJAWI hereby grants Member a worldwide, revocable, non-exclusive, non-transferable right to access and use the Membership benefits during the Term for Member’s internal business purposes, pursuant to the terms and conditions of this Agreement.
1.2 Professional Services. Subject to this Agreement and in consideration of the fees specified in any applicable Order or SOW, the parties may agree for NJAWI to provide Professional Services. The specifications for Professional Services, if any, will be as set forth in an Order or SOW.
2. Use of the Services; Restrictions.
2.1 Conditions. NJAWI’s provision of the Services is conditioned on Member’s acknowledgement and agreement to the following:
(a) Certain types of information included in the Member Content may be subject to specific laws (e.g., laws regarding personally identifiable information, payment card information, protected health information, etc.). Member, not NJAWI is responsible for compliance with any such laws. Without limiting the foregoing, Member represents and warrants that if applicable, it will provide any required notice to and obtain any required consent from individuals and/or other entities related to the Member Content and any personal or otherwise protected information included therein.
(b) All Member Content stored utilizing the Membership benefits is maintained in encrypted form (in transit and at rest) and NJAWI does not access Member Content except: (a) as requested by Member to enable the provision of Member support; and (b) as necessary for NJAWI to (i) comply with applicable law or legal proceedings, or (ii) investigate, prevent or take action against suspected abuse, fraud or violation of this Agreement. Except with respect to requests described in subpart (i) above, unless prohibited by law, where NJAWI receives a request from an individual to access, amend, or delete her/his personal information stored within Member Content or as part of the Account Information provided by Member, NJAWI will refer such requests to Member. Member will be responsible for responding to such requests as required by applicable law, and NJAWI will provide Member with reasonable support as necessary to facilitate Member’s response.
(c) The Membership benefits facilitates the sharing of information within Member’s organization and potentially outside of Member’s organization. Between Member and NJAWI Member has exclusive control over the distribution of and access to the Member Content.
2.2 Login Credentials. Each set of login credentials for the User Account for Membership benefits may be used only by a single, individual Member User. Member agrees to promptly notify NJAWI of any unauthorized access or use of which Member becomes aware. Member will be responsible for all use and misuse of the User Account that occurs under Member Users’ login credentials, and for any breach of this Agreement by any Member Users.
2.3 Prohibited Use. Member will not, and will ensure that Member Users do not: (a) “frame,” distribute, resell, or permit access to the Membership benefits by any third party other than for its intended purposes; (b) use the Membership benefits other than in compliance with applicable law; (c) interfere with the Membership benefits or disrupt any other user’s access to the Drafting and Engineering Service; (d) reverse engineer, attempt to gain unauthorized access to the Drafting and Engineering Service, or attempt to discover the underlying source code or structure of the Drafting and Engineering Service; (e) submit to the Membership benefits any content or data that violates the Acceptable Content Policy, as updated by NJAWI from time to time. (“Acceptable Content Policy”); (f) submit to the Membership benefits any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse, or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; or (h) use any robot, spider, data scraping or extraction tool, or similar mechanism with respect to the Drafting and Engineering Service.
2.4 Usage Limitations. Member’s User Account is subject to the limits on Licensed Users set forth in each Order, as well as the storage and other limitations set forth in the User Account Limits Policy, as updated by NJAWI from time to time. (“User Account Limits Policy”).
2.5 Account Information. Account Information will be provided to NJAWI by Member Users but Member may provide certain Account Information (e.g., Member User titles, departments, phone numbers, or profile pictures) for Member Users when configuring Member’s account. Except for email address, Member Users may elect whether or not to display their Account Information within the Site. In the event that Account Information is provided by Member, Member represents and warrants that: (a) it has provided all required notice to Member Users pursuant to applicable law, Member policy, etc.; and (b) it has all rights, permissions, and consents necessary: (i) to provide the Account Information to Member; and (ii) for the display of such Account Information within the site. In accordance with Section 2.1(b) above, NJAWI will refer to Member any requests related to the Account Information that was provided by Member, and will provide Member reasonable assistance in order to facilitate Member’s response to such requests, unless prohibited by law.
3. Member Content; Processing of Data.
3.1 Disclosure. The Membership benefits are designed to facilitate collaboration and sharing of Member Content among Member Users and, if elected by Member Users, with third parties. NJAWI will not have any responsibility for distribution, publication, display, or any other disclosure of Member Content by Member Users or Collaborators via the Drafting and Engineering Service.
3.3 Service Providers. In addition, NJAWI may allow service providers who act on NJAWI’s behalf to process Member Content and Account Information in connection with providing the membership services, provided that: (a) such service providers are subject to confidentiality obligations that are substantially as protective of the Member Content as those set forth in this Agreement; and (b) NJAWI will be responsible for any breach of this Agreement by such service providers in connection with the provision of the membership services.
3.4 Security. NJAWI will provide maintain commercially reasonable information security policies and safeguards, which include technical and organizational measures, designed to preserve the security, integrity, and confidentiality of the Member Content and to protect it against unauthorized access and information security threats.
3.5 Treatment at Termination. The Membership benefits includes a feature that permits Member, at any time during the term, to obtain a zip file backup that includes: (a) Member’s then-current file attachments in their native file formats; and (b) all other then-current Member Content in an Excel file. Upon the effective date of termination, NJAWI has no obligation to retain, and may delete, Member Content.
3.6 Ownership. As between the parties, Member retains all right, title, and interest in and to all Member Content. Member represents and warrants that it has all rights, permissions, and consents necessary: (a) to submit all Member Content to the NJAWI; (b) to grant NJAWI the limited rights to process Member Content as set forth in this Agreement; and (c) for any transfer or disclosure of Member Content among or by Member Users and Collaborators.
4. Additional Products and Services.
4.1 Connectors. Member may (if its User Account includes one or more Connectors) use Connectors to integrate the Membership benefits with Member’s accounts or User Accounts to third party services or applications. In such case, Member Users may transfer information between the Membership benefits and such third party services or applications via the Connectors, resulting in the modification of Member Content or the content and information stored in Member’s third party services or applications. NJAWI will have no liability for modification or deletion of Member Content or data in third party services or applications through use of a Connector by a Member User.
4.2 Online Education. Member may have access to the educational Resources. In such case, NJAWI hereby grants Member a worldwide, revocable, non-exclusive, non-transferable right to access and use the Educational Resources during the Term for Member’s internal business purposes, pursuant to the terms and conditions herein. Member acknowledges that the Educational Resources are subject to change, and NJAWI does not guarantee the availability of any particular content. The Educational Resources may not be part of the NJAWI.
4.3 NJAWI Apps. NJAWI may make Apps available to all registered users of the site. Member users are granted a worldwide, revocable, non-exclusive, non-transferable right to access and use the Apps during the Term for Member’s internal business purposes, pursuant to the terms and conditions herein. Member acknowledges that use of the Apps is at Member’s sole risk and responsibility, and access to the Apps may be terminated at any time. Apps are made available without charge and are not part of the educational resources.
4.4 Community Features. NJAWI may make public forums, online communities, or bulletin boards (“Community Features”) available to all users of the NJAWI. Member Users are granted a worldwide, revocable, non-exclusive, non-transferable right to use the Community Features, pursuant to the terms and conditions herein. Member Users who use the Community Features: (a) grant NJAWI a worldwide, perpetual, non-exclusive, royalty-free, transferable right to use content posted by such Member Users (“Community Content”) to provide the Community Features and improve the Services; (b) acknowledge that Community Content may not be able to be deleted; (c) are responsible for all activity that occurs under their account, including any liability arising from their Community Content; and (d) agree to indemnify NJAWI its corporate affiliates, and their respective directors, employees, and agents and hold them harmless from any claims, demands, proceedings, investigations, or suits brought by a third party regarding such Member User’s Community Content. All Community Content (including any links to third party sites or applications) provided by Member Users must comply with the Acceptable Content Policy. NJAWI reserves the right to remove, edit, or reinstate any Community Content at its sole discretion, and without notice to the originating Member User. NJAWI disclaims all liability arising from the Community Content and use of the Community Features, including exposure to content that is potentially offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. Member acknowledges that use of the Community Features is at Member’s sole risk and responsibility, and access to the Community Features may be terminated at any time. The Community Features are made available without charge and are not part of the Educational Recourses.
4.5 Third Party Applications. Third party applications and web services, including without limitation Partner Apps, may be available to Member for use in connection with the NJAWI membership. These applications and services are provided by third parties and are not part of the NJAWI Service, except where otherwise specified. Third party applications and services are subject to any end user license agreements that accompany them, and NJAWI has no liability whatsoever with respect to any third party applications and services. Notwithstanding the foregoing, the payment provisions (and only the payment provisions) of this Agreement apply with respect to Partner Apps purchased by Member under an applicable Order.
5. Fees and Payment.
5.1 Fees; Payment. In consideration of the Services, Member will pay the fees specified at the time of purchase or renewal of membership. Unless otherwise specified in an Order, NJAWI may raise the unit price for any Renewal Terms to the then-current pricing for the relevant Services. In the event that Member selects a multi-year User Account Term for an Order: (a) Member may elect to pay the total fees for the Membership benefits at the outset in lieu of being invoiced or charged annually; or (b) Member will be invoiced or charged for the Membership benefits upon completion of such services, even if Member has terminated the Order or otherwise changed its User Account plan. Member will reimburse NJAWI for reasonable, out-of-pocket expenses incurred by NJAWI in the course of providing Professional Services. All fees are nonrefundable once paid, except as expressly otherwise provided in this Agreement or the applicable SOW or Order. Member agrees to promptly notify NJAWI of any changes to its billing information. If Member uses a credit card to make payment hereunder, Member authorizes NJAWI to charge such credit card on a recurring basis for all applicable fees and taxes. If Member is invoiced for fees and taxes, all amounts are payable according to the invoice instructions in U.S. dollars net thirty (30) days from the date of the invoice unless otherwise specified. Items purchased via an Order and all renewals shall be payable in advance. Items purchased via SOW shall have the applicable invoicing instructions included in the SOW. NJAWI reserves the right to correct any billing errors or mistakes that it identifies even if it has already issued an invoice or received payment. Member agrees to notify NJAWI about any suspected billing errors or mistakes within thirty (30) days after the relevant invoice or charge date; failure to do so will result in waiver of Member’s right to dispute such errors or mistakes. Except as prohibited by law, NJAWI may charge a late fee of one and one half percent (1.5%) per month on past due amounts. Member will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by NJAWI to collect any amount that is not paid when due. NJAWI may accept payment in any amount without prejudice to NJAWI’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to NJAWI by Member may not be withheld or offset against amounts due or asserted to be due to Member from NAJWI. Other than income taxes imposed on NJAWI Member will bear all taxes, duties, VAT and all other governmental charges (collectively, “taxes”) resulting from this Agreement. If Member is exempt from any applicable taxes, it will provide evidence reasonably satisfactory to NJAWI of its tax exempt status. If Member requires a purchase order, vendor registration form, or other documentation, such requirement will in no way affect or delay Member’s obligation to pay any amounts due hereunder.
5.2 Refund Policies. In the event that Member terminates this Agreement for NJAWI’s uncured breach pursuant to Section 6.4 or pursuant to Section 10.2, Member will be entitled to a prorated refund of prepaid, unused fees for the Membership benefits and if applicable, the educational Resources. In the event that Member terminates the membership or any other services associated with membership, pursuant to Section 10.3, Member will be entitled to a prorated refund of the prepaid, unused fees for the Professional Services.
5.3 Resellers and Payment Processors. NJAWI may enable Members to purchase and/or pay for certain Services through an authorized reseller or payment processor (“Channel Partner”). Member’s obligation for payment to, and relationship with, such Channel Partner is between Member and such Channel Partner.
5.4 Free Access. If Member is provided with access to the membership benefits, Add-Ons or any other NJAWI product or service at no charge, Member acknowledges that (a) the version available to Member may not include or allow access to all features and functionality available to paid subscribers, and (b) such products and services are made available to Member on an “as is” basis without any warranty, support, maintenance, or other obligation of any kind. Add-Ons provided without charge are not part of the Membership benefits for purposes of this Agreement. NJAWI may terminate Member’s free access to any NJAWI product or service at any time, unless otherwise specified. Any use of a NJAWI product or service at no charge is at Member’s sole risk and responsibility.
6. Term and Termination.
6.1 Term. This Agreement will remain in effect throughout the Term unless earlier terminated as set forth herein.
6.2 Term; Non-Renewal of Orders. Each Order remains in effect for the initial User Account Term specified therein and any subsequent renewal periods (each a “Renewal Term,” and collectively with the Initial Term, the “Term”). After the Initial Term of an Order ends, Orders will automatically renew for successive one (1) year Renewal Terms unless either party provides the other party written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
6.3 Term of SOWs. Each SOW remains in effect for the period specified therein. If no period is specified, the SOW will terminate once the Professional Services set forth in the SOW have been completed.
6.4 Termination for Cause; Suspension. Either party may terminate this Agreement immediately if the other party breaches any material provision of an applicable Order, SOW, or this Agreement, and fails to cure that breach within thirty (30) days of written notice from the non-breaching party identifying the breach. In addition, NJAWI may suspend Member’s access to the Membership benefits immediately if: (a) Member fails to make a payment when payment is due; or (b) Member has (or NJAWI reasonably suspects that Member has) breached Section 2.3 or misappropriated or infringed NJAWI’s intellectual property or proprietary rights.
6.5 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all Orders and SOWs under this Agreement will terminate; (b) all rights and obligations of the parties hereunder will cease (except as set forth in Section 6.6 below); (c) Member will remain obligated to pay for Professional Services rendered through the effective date of termination; and (d) Member will not be entitled to any refund of fees (except as set forth in Section 5.2 above).
6.6 Survival. The following sections will survive termination or expiration of this Agreement: 3.2 (Processing), 3.5 (Treatment at Termination), 3.6 (Ownership), 4.4 (Community Features), 4.5 (Third Party Applications), 5.1 (Fees; Payment) (with respect to amounts that are accrued but unpaid as of the effective date of termination), 5.4 (Free Access to Add-Ons), 6.6 (Survival), 7 (Proprietary Rights), 8 (Confidentiality), 11 (Limitation of Liability; Damages Exclusion), 12 (Indemnification), 14 (Non-Solicitation), 16 (Notices), 18 (Entire Agreement), and 19 (General).
7. Proprietary Rights. As between the parties, NJAWI retains all right, title and interest in and to: (a) the Services, Work Product (except for any Member Confidential Information used to develop the Work Product), Labs Apps, Training Resources, Community Features, and the technology and software used to provide them, and all intellectual property and proprietary rights therein; and (b) all electronic and print documentation and other content and data (excluding Member Content and Account Information) made available through the Services. Except for the licenses as set forth in this Agreement, this Agreement does not convey any of NJAWI’s intellectual property or proprietary rights to anyone, including Member. Member agrees that NJAWI will have a perpetual right to use and incorporate into the Services, Work Product, Laps Apps, Educational Resources, or Community Features any feedback or suggestions for enhancement that Member or a Member User provides to NJAWI without any obligation of compensation.
8.1 Confidential Information. “Confidential Information” means all non-public, proprietary business, technical, legal, or financial information disclosed or learned in connection with this Agreement (or in the case of Member, learned in conjunction with Member’s use of the Services) that the Disclosing Party has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding its disclosure, the Receiving Party should treat as confidential. Confidential Information does not include: (a) Member Content or Account Information; (b) information that was generally known to the public at the time disclosed to the Receiving Party; (c) information that becomes generally known to the public (other than through a breach of this Section 8 by the Receiving Party) after disclosure to the Receiving Party; (d) information that was in the Receiving Party’s possession free of any obligation of confidentiality prior to disclosure by the Receiving Party; (e) information that is rightfully received by the Receiving Party from a third party without any restriction on disclosure; or (f) information that was independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information. All Confidential Information is provided “AS IS.” NEITHER PARTY MAKES ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.
8.2 Use and Disclosure of Confidential Information. The Receiving Party: (a) will not use the Disclosing Party’s Confidential Information for any purpose except in connection with this Agreement; (b) will not disclose, give access to, or distribute any of the Disclosing Party’s Confidential Information to any third party, except to the extent expressly authorized in a separate written agreement signed by both parties; and (c) will take reasonable security precautions (which will be at least as protective as the precautions it takes to preserve its own Confidential Information of a similar nature) to keep the Disclosing Party’s Confidential Information confidential. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those of its employees, directors, affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as this Agreement. The Receiving Party will be responsible for its Representatives’ disclosure or use of the Disclosing Party’s Confidential Information in violation of this Section 8. The Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information, or any other breach of this Section 8, by it or its Representatives. The Receiving Party’s (and its Representatives’) obligations under this Section 8 cease to apply to information upon the later of: (i) the termination of this Agreement; or (ii) after three (3) years have passed from the date on which it was first disclosed.
8.3 Return of Materials. Upon written request by the Disclosing Party, the Receiving Party will: (a) either return or destroy all documents and media in its possession or control that contain the Disclosing Party’s Confidential Information; and (b) certify its compliance with this Section 8.3 in writing. Notwithstanding the foregoing, the Receiving Party will not be obligated to erase Confidential Information of the Disclosing Party that is contained in an archived computer system backup that was made in accordance with the Receiving Party's security and/or disaster recovery procedures; provided, however, that any such Confidential Information contained in such archived computer system backup will be subject to this Section 8.
8.4 Intellectual Property; No Obligation to Disclose. The Disclosing Party retains all of its rights, title, and interest in and to its Confidential Information, including all intellectual property and proprietary rights therein. The disclosure of Confidential Information to the Receiving Party does not grant or convey any right of ownership of such Confidential Information. The Receiving Party understands that nothing in this Agreement requires the disclosure of any Confidential Information; provided that if NJAWI is the Receiving Party, Member understands that it may not be able to receive the full benefit of the Membership benefits without disclosure of certain Confidential Information.
8.5 Required Disclosures. The Receiving Party may disclose Confidential Information to the extent required by law or legal process. In such cases, however, the Receiving Party will (except to the extent prohibited by law or legal process from doing so): (a) give the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to ensure that the Confidential Information will be subject to a protective order or other legally available means of protection.
8.6 Permitted Disclosures. In the event that Member utilizes a Channel Partner in connection with this Agreement, Member acknowledges and agrees that its Confidential Information, and any Orders and SOWs may be disclosed to such Channel Partner.
8.7 Injunctive Relief. The Receiving Party acknowledges that any actual or threatened breach of this Section 8 may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the Disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this Section 8 with respect to the Disclosing Party’s Confidential Information or any damages that may otherwise result from those breaches.
10. Representations and Warranties; Disclaimer.
10.1 Authority Warranty. Member represents and warrants that it has the necessary authority to enter into this Agreement on behalf of themselves or the entity they are representing, as applicable. If Member is accepting this Agreement in connection with its use of the Services on behalf of any entity, Member acknowledges and agrees that this Agreement will be enforceable against such entity.
10.2 Limited Warranty for Membership benefits. If Member has paid fees under this Agreement for the membership or other services, NJAWI represents and warrants that the Membership benefits will operate substantially as described in the online product descriptions written or created by NJAWI and made available on the Site. Member must notify NJAWI in writing of any alleged failure by NJAWI to comply with this warranty within thirty (30) days of such failure. Upon receipt of such notice, NJAWI will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the applicable Order and issue a prorated refund for the terminated portion of the Membership services. This Section 10.2 sets forth Member’s exclusive rights and remedies and NJAWI’s sole liability in connection with the provision of the Drafting and Engineering Service.
10.3 Limited Warranty for Professional Services. If Member has paid fees under this Agreement for Professional Services, NJAWI represents and warrants that the Professional Services will be provided in a competent and workmanlike manner in accordance with the Order or SOW, as applicable. Member must notify NJAWI in writing of any alleged failure by NJAWI to comply with this warranty within thirty (30) days following delivery of the Professional Services. Upon receipt of such notice, NJAWI will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the Professional Services and issue a prorated refund for the terminated portion of the Professional Services. This Section 10.3 sets forth Member’s exclusive rights and remedies and NJAWI’s sole liability in connection with the performance of the Professional Services.
10.4 Disclaimer. Member acknowledges that the Drafting and Engineering Service, Training Resources, Labs Apps, and Community Features may experience periods of downtime, including but not limited to scheduled maintenance. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION 10, NJAWI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE DRAFTING AND ENGINEERING SERVICE, TRAINING RESOURCES, LABS APPS, COMMUNITY FEATURES, PROFESSIONAL SERVICES, WORK PRODUCT, AND ANY INFORMATION OR MATERIALS RELATED THERETO OR MADE AVAILABLE THEREFROM, WHETHER EXPRESS OR IMPLIED. NJAWI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. NJAWI DOES NOT WARRANT THAT THE DRAFTING AND ENGINEERING SERVICE, TRAINING RESOURCES, LABS APPS, OR COMMUNITY FEATURES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. NJAWI MAKES NO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE THIRD PARTY APPLICATIONS AND COMMUNITY CONTENT, AND EXPRESSLY DISCLAIMS ALL RESPONSIBILITY THEREFOR.
11. Liability Limitation; Damages Exclusion. NJAWI WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE ARISING UNDER THIS AGREEMENT, EVEN IF IT HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. NJAWI’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY MEMBER TO NJAWI UNDER THE ORDER FORM OR SOW TO WHICH THE LIABILITY RELATES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE.
12.1 By Negesco LLC. If Member has paid fees under this Agreement for the Services, NJAWI will defend Member, its corporate affiliates, and their respective directors, employees, and agents (“Member Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party alleging that Member’s use of the Membership benefits or Work Product in accordance with this Agreement infringes any third party intellectual property rights (each an “Infringement Claim”). NJAWI will indemnify Member Indemnified Parties for any damages, reasonable attorneys’ fees, and costs resulting from an Infringement Claim and finally awarded against Member or agreed to be paid by Member in a written settlement approved by NJAWI in writing. Notwithstanding the foregoing, NJAWI will have no obligation under this Section 12.1 to the extent any alleged infringement arises from: (a) Member’s use of the Membership benefits or Work Product in combination with technology or services not provided by NJAWI if the infringement would not have occurred but for such combination; (b) Member Content; (c) NJAWI’s compliance with designs, specifications, or instructions provided by Member if such infringement would not have occurred but for such designs, specifications, or instructions; or (d) use by Member after notice by NJAWI to discontinue use (provided that NJAWI subsequently refunds amounts paid for the allegedly infringing material after Member’s discontinuance of use). If Member is enjoined or otherwise prohibited from using any of the Membership benefits or Work Product or a portion thereof based on an Infringement Claim, then NJAWI will, at its sole expense and option, either: (i) obtain for Member the right to use the allegedly infringing portions of the Membership benefits or Work Product; (ii) modify the allegedly infringing portion of the Membership benefits or Work Product so as to render it non-infringing without substantially diminishing or impairing its functionality; or (iii) replace the allegedly infringing portions of the Membership benefits or Work Product with non-infringing items of substantially similar functionality. If NJAWI determines that the foregoing remedies are not commercially reasonable, then NJAWI may terminate the applicable Order or SOW and issue a prorated refund of fees prepaid by Member for the terminated portion of the Initial Term or then-current Renewal Term. This Section 12.1 sets forth NJAWI’s sole liability and Member’s sole and exclusive remedy for any actual or alleged infringement by NJAWI of any third party intellectual property rights.
12.2 By Member. Member will defend NJAWI its corporate affiliates, and their respective directors, employees, and agents (“NJAWI Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits brought by a third party arising out of: (a) the Member Content; or (b) Member’s use of the Membership benefits or Work Product in violation of this Agreement or applicable law. Member will indemnify NJAWI Indemnified Parties for any damages, reasonable attorney’s fees, and costs resulting from a claim that Member is obligated to defend and finally awarded against NJAWI or agreed to be paid by NJAWI in a written settlement approved by Member in writing.
12.3 Conditions. The indemnifying party’s obligations under this Section 12 are contingent on the indemnified party: (a) promptly providing written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party); and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim. The indemnified party may participate in the defense of the claim at its sole cost and expense.
13. Publicity. Unless Member has specifically notified NJAWI to the contrary in writing (email notice permitted), NJAWI may disclose Member as a Member of NJAWI and may use Member’s name and logo on the Site and in NJAWI’s promotional materials. NJAWI will request Member’s prior consent for any other uses; such consent to be deemed given if Member fails to respond to a request within five (5) business days.
14. Non-Solicitation. During the Term and for a period of one (1) year thereafter, Member will not: (a) hire or attempt to hire any of NJAWI’s employees; or (b) solicit, induce, recruit or encourage any of NJAWI’s employees to terminate their relationship with Negesco LLC. Notwithstanding the foregoing, Member will not be precluded from hiring a NJAWI employee pursuant to a general solicitation of employment (e.g., posting a job opening) not specifically directed at NJAWI employees.
15. Federal Government Members. The Membership benefits may be a “commercial item” consisting of “commercial computer software” as defined in FAR 2.101. NJAWI may provide the Membership benefits for federal government end use in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), and for Department of Defense agencies in accordance with DFAR 227.7202 (Commercial Computer Software and Commercial Computer Software Documentation).
16. Notices. Member agrees to receive all communications, agreements, and notices from NJAWI electronically, including by e-mail, in-app notifications, or by posting them on the Site or through the Membership Service. Member further agrees such communications provided electronically will satisfy any legal requirement that such communications be in writing. Except where this Agreement permits notice to NJAWI via email, all notices provided under this Agreement must be in writing and sent via internationally recognized delivery service or certified U.S. mail. Notices sent via email will be deemed given one (1) business day after being sent; notices sent via any other authorized delivery method will be deemed given five (5) business days after being sent. Notices must be addressed as follows: if to NJAWI to Attn: Legal Affairs, 65 ridge Ave, Bloomfield, NJ 07003 and for notices permitted to be sent via email, to firstname.lastname@example.org
17. Assignment. Either party may assign this Agreement and any Orders or SOWs in connection with a merger or similar transaction, or to a company acquiring substantially all of its assets, equity, or business, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this Agreement or any Orders or SOWs to a third party without the advance written consent of the other party. This Agreement and any Orders or SOWs will bind and benefit the parties, their successors, and their permitted assigns.
18. Entire Agreement. This Agreement and any Orders or SOWs represent the entire agreement between NJAWI and Member with respect to Member’s use of the Membership benefits and accompanying Professional Services. In the event of a conflict between the payment terms in this Agreement and any Order or SOW, the payment terms in the Order or SOW will govern and control. In the event of any other conflict between this Agreement and any Order or SOW, this Agreement will govern and control. This Agreement and any Orders or SOWS expressly supersede: (a) any terms or conditions stated in a Member purchase order or similar document, whether submitted or executed before or after the User Account Start Date set forth in the applicable Order; and (b) any other contemporaneous or prior agreements or commitments regarding the Membership benefits or the other subject matter of this Agreement. For the avoidance of doubt, this Agreement will not supersede any non-disclosure agreement entered into by the parties governing information exchanged prior to Member’s use of the Services or for purposes unrelated to this Agreement. NJAWI expressly agrees that any end-user agreement governing use of the Training Resources and Community Features by Member Users will be considered null and void and will not supersede this Agreement.
19. General. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control. This Agreement and any Orders or SOWs are governed by the laws of the State of Washington, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Seattle, Washington for any dispute arising out of this Agreement or any Orders or SOWs. The waiver of any breach of any provision of this Agreement or of any Order or SOW will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach. If any provision of this Agreement or of any Order or SOW is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement or the relevant Order or SOW is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement or any Order or SOW, the entire Agreement or the relevant Order or SOW will be deemed null and void.
20. Modifications. NJAWI reserves the right to modify this Agreement by posting a revised version on the Site. Except in the event of extenuating circumstances, revisions will be effective fifteen (15) days after posting. Continued use of the Services after the effective date of a revision will constitute Member’s agreement to the modified Agreement. If Member does not agree to a revision, Member may terminate this Agreement by providing written notice to Negesco LLC. For the avoidance of doubt, Member will not receive a refund of fees. Member's termination will be effective upon Negesco LLC's acknowledgement of such termination, and in no event later than thirty (30) days from Negesco LLC's receipt of Member's termination notice. Member's continued use of the Membership benefits after the effective date of a revision will constitute acceptance of the modified Agreement.
“Acceptable Content Policy” has the meaning given in Section 2.3.
“Account Information” means personal information about Member Users provided to NJAWI in connection with the creation or administration of Member User accounts. For example, Account Information includes names, email addresses, and other profile information associated with a Member User account. Account Information does not include aggregate or de-identified information compiled from Account Information that does not identify Member, any Member User, or any other individual.
“Add-Ons” means optional features and applications developed by NJAWI and purchased and included as part of Member’s User Account, including Connectors, Premium Apps, and the other Add-Ons indicated in each Order.
“Channel Partner” has the meaning given in Section 5.3.
“Collaborator” means a user with a NJAWI login invited to access and use an account.
“Community Content” has the meaning given in Section 4.4.
“Community Features” has the meaning given in Section 4.4.
“Confidential Information” means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time disclosed to, or learned by, the Receiving Party, or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. For the avoidance of doubt, Confidential Information does not include Member Content or Account Information.
“Connector” means an Add-On developed by NJAWI that allows for Member Content to be exported or imported from Member’s account or User Account to a third party service or application.
“Member Content” means data, information, file attachments, text, images, personally identifiable information, and other content that is (a) uploaded or submitted to the Membership benefits by Member Users; and/or (b) collected by Member Users from third parties using “web forms” or similar features of the Drafting and Engineering Service. Member Content does not include usage, statistical, and technical information related to Member Content that does not reveal the actual contents of the Member Content.
“Member Indemnified Parties” has the meaning given in Section 12.1.
“Member User” means, collectively, all (a) Licensed Users; (b) Sys Admins (regardless of whether or not they are Licensed Users); and (c) any Non-Licensed Users.
“De-identified Data” has the meaning given in Section 3.5.
“Disclosing Party” means the party disclosing Confidential Information to the Receiving Party.
“Infringement Claim” has the meaning given in Section 12.1.
“Apps” means any pre-release, alpha or NJAWI Apps that NJAWI may make available to Member separately from the Drafting and Engineering Service.
“Licensed User” means a user with certain rights to use the Membership benefits on Member’s behalf. Member’s Sys Admin(s) may designate any user with a registered NJAWI login as a Licensed User.
“Non-Licensed User” means a user with a NJAWI login who (a) is not a Licensed User and (b) accepts an invitation to join Member’s account and have his or her usage managed by Member’s Sys Admin.
“Order” means (a) an electronic or tangible order form or (b) online order, setting forth commercial details of a User Account to the Membership benefits (including any Add-Ons) and the purchase of associated Professional Services (if any), and incorporating this Agreement by reference.
“Partner Apps” means applications developed and owned by third parties for which Member purchases a license from NJAWI under this Agreement and are made available to Member exclusively in accordance with the terms and conditions of the end user license agreements accompanying them (except that the payment provisions of this Agreement will apply).
“Premium Apps” means an Add-On developed by NJAWI that allows for Member Content to be viewed or manipulated in a separate interface.
“Professional Services” means implementation, configuration, integration, training, advisory, and other professional services related to the Membership benefits that are specified in an SOW or Order.
“Receiving Party” means the party receiving or accessing Confidential Information of the Disclosing Party.
“Representatives” has the meaning given in Section 8.2.
“Site” means NJAWI’s website at www.njawi.org
“NJAWI Indemnified Parties” has the meaning given in Section 12.2.
“NJAWI User Agreement” has the meaning given in Section 19.
“SOW” means a statement of work or similar document that describes Professional Services, establishes the fees for the Professional Services, references this Agreement, and is executed by an authorized representative of each party.
“User Account Limits Policy” has the meaning given in Section 2.4.
“Software Subscription” means NJAWI’s internet-delivered subscription based work collaboration service.
“Sys Admin” means a user with certain administrative control rights over Member’s User Account plan.
“Term” has the meaning given in Section 6.2.
“Training Resources” means NJAWI’s Online Education portal and the content therein.
“Work Product” means all software, drawings, code, materials, ideas, deliverables, and items that are
conceived, made, discovered, written, or created by NJAWI’s personnel in connection with providing the