Terms and Conditions for Reliabilityweb Subscription and Membership

These terms and conditions govern the subscription(s) (“Subscription(s)”) and membership(s) (“Membership(s)”) set forth on the applicable order form (“Order Form”) provided by NetexpressUSA Inc. d/b/a Reliabilityweb.com on behalf of itself and its affiliates (“Reliabilityweb”) to an individual who has authority to act for the customer (hereinafter referred to as “you” or “Customer”). These terms and conditions and the Order Form are collectively referred to as this “Agreement”. This Agreement is not effective until the Order Form is signed by an authorized representative of Customer. Execution by Customer may take the form of an electronic signature, which shall be considered binding as if it were signed by hand. In the event of a conflict between the Order Form and these terms and conditions, the terms of the Order Form shall apply.

1. Subscriptions and Memberships. Each Subscription and Membership as applicable will be provided to Customer under the terms set forth in the Order Form. Subject to the terms and conditions of this Agreement, Reliabilityweb grants to Customer, during the term designated on the applicable Order Form, a limited, non-exclusive and nontransferable right for it and its Authorized Users to use the subscription and/or membership materials designated on the Order Form and the accompanying documentation (collectively, “Materials”) internally for Customer’s Reliability Excellence initiative. Further, Reliabilityweb may provide to you links to certain videos of conference presentations (“Presentations”). Such Presentations are Materials under this Agreement. You may post the Presentations on your internal intranet; provided that this right only applies to the Presentations and not to any other Materials provided to you. The Materials will be provided in the English language only unless otherwise provided in the Order Form. “Authorized Users” means Customer’s employees and contractors permitted to use the Materials subject to the requirements and usage limitations of this Agreement.
2. Ownership. Notwithstanding anything to the contrary, except for the limited usage rights expressly provided in this Agreement, Reliabilityweb has and will retain all right, title and interest in and to the Materials, and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited right to use the Materials and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
3. Restrictions. Except as otherwise expressly permitted in this Agreement, Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, distribute or otherwise transfer in whole or in part, any Materials to a third party; (b) allow access or permit use of the Materials by any third party except Authorized Users; provided that Customer shall be liable for all acts and omissions of such Authorized Users; (c) modify or create derivative works based upon the Materials; or (d) change any proprietary rights notices which appear in the Materials. Further, during the term of this Agreement and for a period of two (2) years thereafter, Customer agrees that it will not create any materials or systems which could directly or indirectly compete with the licensing and use of the Materials. If the applicable Subscription or Membership includes the use of the Uptime®.Academy Learning Management System (“Uptime®.Academy”) on the Order Form, Customer shall ensure that it and its Authorized Users comply with any terms of service or terms of use of the Uptime.Academy.
4. Warranties and Disclaimer. Reliabilityweb represents and warrants that for a period of thirty (30) days after the effective date of the applicable Subscription or Membership, the Materials will substantially conform to their accompanying documentation. In the event of a breach of the foregoing warranty, Reliabilityweb shall, as its sole obligation and Customer’s sole remedy, correct the Materials; provided that this remedy is only available if Reliabilityweb receives notice of such breach within thirty (30) days of the effective date of the Order Form. EXCEPT FOR THE WARRANTIES IN THIS SECTION 4, THE MATERIALS AND ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS-IS” AND RELIABILITYWEB AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, TITLE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
5. Limitation of Liability. IN NO EVENT WILL RELIABILITYWEB OR ITS SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED. IN NO EVENT WILL RELIABILITYWEB’S CUMULATIVE LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID TO RELIABILITYWEB BY CUSTOMER FOR THE RELEVANT SUBSCRIPTION OR MEMBERSHIP DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. IN NO EVENT WILL RELIABILITYWEB’S SUPPLIERS HAVE ANY LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 5 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER, RELIABILITYWEB AND RELIABILITYWEB’S SUPPLIERS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
6. Indemnity. Each party will indemnify, defend and hold harmless the other party from and against all claims arising out of or alleged to have arisen out of: (a) the gross negligence or willful misconduct of such party, its employees or agents; or (b) bodily injury or death of any person or damage or destruction to any real or tangible personal property resulting from the negligent performance of such party's obligations under this Agreement.
7. Term and Termination. This Agreement shall commence on the date that Customer signs the Order Form and will continue until terminated as set forth in this Agreement (“Term”). Either party may terminate this Agreement upon notice to the other party in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of written notice. Each Subscription or Membership as applicable shall begin on the date Customer purchases the Subscription or Membership by entering into an applicable Order Form and shall continue during the time Customer has paid the initial Subscription or Membership fees set forth on the Order Form (“Initial Term”), unless terminated earlier in accordance with this Section 7. Subscriptions and Memberships shall automatically renew at Reliabilityweb’s then-current rates for additional terms of one (1) year each (each a “Renewal Term”) unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term. Upon the termination of this Agreement or the expiration or termination of the underlying Subscription or Membership: (a) all rights to use the Materials granted in this Agreement automatically terminate, (b) Customer shall promptly remove any Presentations from its intranet; and (c) Customer shall either: (i) return all Materials to Reliabilityweb, or (ii) destroy all Materials and provide Reliabilityweb written certification that such destruction has taken place. Sections 2-10 shall survive expiration or termination of this Agreement. During the Term and for two (2) years following termination or expiration (but no more than once in a calendar year), Reliabilityweb and its auditors may inspect Customer’s records relating to its reproduction and use of the Materials for the purposes of verifying Customer’s compliance with this Agreement. Customer shall cooperate fully with Reliabilityweb and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer shall promptly pay such amount. If an underpayment of more than ten percent (10%) for the period audited is discovered, Customer shall promptly reimburse Reliabilityweb for the cost of the audit.
8. Confidentiality. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, the receiving party (“Receiving Party”) shall (i) hold the Confidential Information of the disclosing party (“Disclosing Party”) in trust and confidence and avoid the disclosure or release of such Confidential Information to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the Disclosing Party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to those of its employees and contractors having a need to know such Confidential Information and shall be liable for all violations of this Section 8 by its employees and contractors. The obligations under this Section shall not apply to information that the Disclosing Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of this Agreement or other wrongful act by the Receiving Party, (c) has been received from a third party without restriction on disclosure and without breach of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party without regard to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party gives the Disclosing Party prompt written notice if legally permitted to do so. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Reliabilityweb, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Subscriptions and Memberships provided under this Agreement.
9. Payment. Unless set forth in the applicable Order Form, fees shall be: (i) invoiced in full upon the effective date of the applicable Order Form, (ii) paid in US dollars, and (iii) paid within thirty (30) days of the date of the invoice. Except as provided in this Agreement, all payments are nonrefundable and shall be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Reliabilityweb may charge interest at one percent (1%) per month on the unpaid balance. If Customer fails to pay fees in accordance with this Section, Reliabilityweb may suspend fulfilling its obligations under this Agreement until such payment is received by Reliabilityweb. All fees payable by Customer are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and that are imposed on that party with respect to the payments under this Agreement. If any taxes are required to be withheld on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Reliabilityweb is equal to the amount then due and payable under this Agreement.
10. Miscellaneous. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement which does not include the use of the Materials in violation of the terms of this Agreement. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Subscriptions and Memberships to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Reliabilityweb and Customer and do not create any right in favor of any third party. The laws of the State of Florida will govern this Agreement. In the event of a dispute arising out of or related to this Agreement, each party will give the other prompt notice of the dispute, and both will meet promptly for good faith discussions to try to resolve the matter. If that fails, such dispute will be resolved by final and binding arbitration before a sole arbitrator, who is an attorney, and will be administered by the American Arbitration Association under its then-current Commercial Arbitration Rules. The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in a court of competent jurisdiction located in Lee County, Florida. The arbitration will be held in Lee County, Florida. The arbitrator must enforce the terms of this Agreement and will have no authority to award any damages in conflict with or in excess of the limitations and exclusions set forth in this Agreement. All notices must be in writing and shall be effective three (3) days after the date sent to the other party’s headquarters, Attention Legal Department. Neither party may hire, or directly or indirectly solicit or employ, any employee or contractor of the other party during the term of this Agreement and for two (2) years after the termination of this Agreement; provided, however, that nothing contained herein will prevent a party from hiring any such employee or contractor who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis.

12/2016