These Terms of Use ("Terms") are a contract entered into between Bersin & Associates, LLC with its principal place of business at 180 Grand Avenue, Oakland, Ca 94612 ("Bersin"), and the individual and/or entity ("Customer") identified in the sales order form submitted during the sales and enrollment process. As set forth in the sales order form or any renewal thereof (the "Order") Bersin and Customer agree that Bersin shall make available to Customer the research, analysis, reports and any other information (collectively, "Information") and services identified in the Order, subject to these Terms and any additional terms and conditions specified on an Order (collectively, "Agreement"). The Information is made available by Bersin through the Bersin web site currently published at www.Bersin.com ("Site”). These Terms are posted and made available for review from the Site. Bersin may make changes to these Terms at any time by notifying Customer of the change in writing or electronically (including without limitation, by email or by posting a notice on the Site that the terms have been updated). Customer’s continued use of the Information or receipt of services constitutes Customer’s acceptance of any such updated Terms. In addition, when using particular services Customer may be subject to any posted guidelines or rules applicable to such services that may be posted from time to time.

1. Registration, License and Restrictions on Use and Consulting Services

1.1 - In order to access and use the Information Customer must (i) acknowledge that it has read and accepted these Terms, and (ii) provide any other information required by Bersin during the enrollment and registration process. Customer represents and warrants to Bersin that the information provided by Customer in the enrollment and registration process is accurate and complete.

1.2 - Bersin grants to Customer a non-exclusive, non-transferable license to use the Information purchased pursuant to an Order or online through Bersin’s on-line store subject to the limitations contained in this Agreement and any additional terms and conditions specified in an Order. If Customer has purchased a Bersin membership, Customer’s use of the Information is also subject to the rights and restrictions applicable to the membership level purchased by Customer.

1.3 - The Information (i) is available only for the number of named users identified and described in an Order ("Authorized Users"); (ii) is licensed only for each Authorized User's individual use; and (iii) may not be shared with other persons or entities, either internally or externally. An Authorized User is an entity that is authorized to access the Information during the term specified in an Order, either online or after the Information has been downloaded, and who has been supplied user identifications and passwords by Customer or Bersin. Authorized User licenses cannot be shared or used by more than one individual Authorized User but may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who have terminated employment or otherwise changed job status or function and no longer use the Information. Customer is responsible for all activities conducted under its Authorized Users logins and for Authorized Users’ compliance with this Agreement. Customer is responsible for maintaining the security of its account and passwords to prevent and restrict the access and use of the Information from unauthorized individuals. Customer agrees to notify Bersin immediately of any unauthorized use of any password or account or any other known or suspected breach of Information security.

1.4 - Bersin reserves the right to monitor Customer's use of the Information to ensure compliance with this Agreement and prevent fraudulent use. Such monitoring of use may include but will not be limited to determining whether or not the Information is accessed under the account from multiple computers, as well as noting downloads beyond the limit of the total number as may be set forth in the applicable Order or a disproportionate number of users. If such monitoring indicates Customer is not in compliance with this Agreement or if fraudulent activity is suspected, Bersin reserves the right to take such action as it deems necessary, including, but not limited to, suspension or termination of the account and/or membership. Bersin reserves the right to, at any time, audit the use of the Information remotely or, upon reasonable notice, at Customer’s site. Bersin may deny access to any and all users in excess of the number of Authorized Users specified in an Order.

1.5 - The Information is licensed for Customer's internal use only. The Information may in no event be accessed or used in any manner by individuals employed by or working for research analyst firms, industry analyst firms, or benchmarking consulting firms. Except as expressly permitted under this Agreement Customer will not (i) provide Information to others, whether directly in any media or indirectly through incorporation in a database, report or otherwise: (ii) use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties; (iii) use or permit the use of Information to prepare any comparison to other information databases that is or will be provided to third parties; (iv) use any Information to engage in any unfair or deceptive practices; (v) perform any systematic access or extraction of content from the Information; (iv) rearrange or modify the Information or create abstracts from, scrape or display Information for use on another web site or service; (vi) abridge or create any derivative work based upon the Information; or (vii) sell or otherwise transfer any use of the Information for any commercial purpose. Customer agrees to use the Information only in compliance with applicable state, local, federal or foreign laws or regulations, including but not limited applicable export restrictions, and/or those laws and regulations regarding data protection and privacy.

1.6 - Bersin reserves the right to limit access to the Information to (i) viewing or printing using a third party web browser print function, and (ii) downloading a maximum number of reports per search. For each subscription term of the license granted under this Agreement, Customer and, if specified on an Order, its Authorized Users shall be limited to downloading such total number of reports as may be set forth in such Order. In addition, Authorized Users may be bound by any access and download limitations per search session that are specific to a particular product or Bersin membership level.

1.7 - All reports purchased or made available to Customer are single-copy versions licensed to Customer only. Customer may purchase distribution rights (“Distribution Rights”) that allow internal distribution of Information in accordance with the membership level purchased by Customer and/or other Distribution Rights defined in an Order. Customer agrees to include all copyright and other proprietary rights notices in the same form in which the notices appear in the Information, original source attribution, and the phrase "Used with permission from Bersin & Associates. In no event may Customer distribute the Information outside of Customer’s organization. Unless an Order specifies that Customer has purchased Distribution Rights Customer may make one printed copy and one electronic copy for their own use only and may not sell, publish, distribute, retransmit, reproduce, duplicate, copy, sell, resell or exploit any portion of the Information or otherwise provide access to the Information received through the Information to anyone without the express written consent of Bersin.

1.8 - Bersin will provide implementation or other consulting services to Customer pursuant to a statement of work, engagement letter or other writing (collectively, “SOW”) signed by Bersin and Customer that describes the services to be Each SOW shall reference this Agreement and will be subject to the terms and conditions hereof. Bersin will provide the services specified in one or more SOWs. All services fees shall be billed as stated in the applicable SOW.

2. Payment

2.1 - Unless otherwise stated in an Order, fees stated in each Order Form shall be effective during the initial subscription term specified in that Order and are due and payable to Bersin upon Customer’s execution of such Order. As specified in each Order Bersin will either invoice fees due under such Order or bill all such fees automatically to Customer’s credit card. Subscription fees will be billed at the beginning of Customer’s subscription or any renewal term. Subsequent fees are due and payable within thirty (30) days of receipt of invoice. A late payment charge of the lesser of 1½% per month or the highest lawful rate may be applied to any outstanding balances of undisputed fees due hereunder until paid. Upon execution of an Order and except as otherwise provided in this Agreement, payment obligations defined in such Order are non-cancelable and, except as expressly provided in this Agreement, upon payment of fees defined in an Order, all payments made by Customer are non-refundable.

2.2 - Customer will pay any applicable taxes relating to this Agreement, other than taxes based on Bersin income and franchise - related taxes.

3. Disclaimer

THOUGH BERSIN AND ITS AFFILIATES USE EXTENSIVE PROCEDURES TO KEEP ITS DATABASE CURRENT AND TO PROMOTE DATA ACCURACY, ALL SERVICES AND INFORMATION ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, BERSIN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BERSIN DOES NOT WARRANT THAT THE INFORMATION WILL BE ERROR-FREE, ACCURATE OR RELIABLE. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT BERSIN WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, BERSIN CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING SERVICES OR INFORMATION.

4. Copyrights and Other Proprietary Rights

4.1- Bersin retains all ownership rights (including copyrights and other intellectual property rights) in the Information, in any form, and Customer obtains only such rights as are explicitly granted in this Agreement and each Order. Information and any know-how, methodologies, equipment, or processes used by Bersin to provide the Information to Customer are proprietary, copyrighted works of Bersin and its affiliates, is protected by copyright and other intellectual property laws and comprises: (i) works of original authorship, including compiled Information containing Bersin or its affiliates' selection, arrangement and coordination and expression of such Information or pre-existing material it has created, gathered or assembled; (ii) trade secret and other confidential information, including information that derives value or potential value from not being readily known or available; (iii) information that has been created, developed and maintained by Bersin or its affiliates; and (iv) shall remain the sole and exclusive property of Bersin or its affiliates. Misappropriation or unauthorized use by others for commercial gain may unfairly and/or irreparably harm Bersin. Customer will not commit or permit any act or omission that would contest or impair Bersin or any affiliate's proprietary and intellectual property rights in Information or that would cause the Information to infringe the proprietary or intellectual property rights of a third party.

4.2 - Customer will not use any trademark, service mark or trade name of Bersin.

4.3 - Customer shall implement and maintain security measures with respect to the Information in Customer's possession that effectively restrict access to Information only to Authorized Users with a need to know, and protect Information from unauthorized use, alteration, access, publication and distribution.

4.4 - Bersin shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s data. We shall not (a) modify Customer’s data, (b) disclose Customer’s  data except as expressly permitted in writing by Customer, or (c) access Customer’s data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

4.5 - Registration data and other information about Customer is subject to Bersin’s privacy policy. Bersin shall have the right to include customer’s name and logo on its website and in its sales materials.

4.6 - The terms What Works®, E-Learning: What Works™®, Blended Learning: What Works™®, High Impact Learning Organization®, High Impact Learning®, and Ask The Experts™® are copyrights of Bersin.

5. Indemnification

5.1 - Indemnification by Bersin. Bersin shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with third party claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Information or Information as contemplated hereunder infringes the intellectual property rights of such third party, provided, that Customer (a) promptly give written notice of the Claim to Bersin; (b) give Bersin sole control of the defense and settlement of the Claim (provided that Bersin may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Bersin, at Bersin’s cost, all reasonable assistance. Bersin will, at its sole option and expense: (i) procure for Customer the right to continue using the Information and Information under the terms of this Agreement; (ii) replace or modify the Information or Information to be non-infringing; or (iii) if the foregoing options are not reasonably practicable, Bersin will terminate this Agreement and Bersin will refund Customer all prepaid fees for the remainder of its subscription term after the date of termination. This Section 6.1 represents Customer’s sole and exclusive remedy for Bersin' breach of its non-infringement warranty. Bersin shall have no liability for any Claim to the extent the Claim is based upon modification of the Information by Customer or the combination of the Information with material from third parties, if such Claim would have been avoided by the use of the Information without such combination or modification. THE PROVISIONS OF THIS SECTION 6.1 SET FORTH BERSIN’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO THIRD PARTY CLAIMS THAT THE INFORMATION OR SERVICE INFRINGE OR MISAPPROPRIATE THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

5.2 - Indemnification by Customer. Customer shall defend, indemnify and hold Bersin harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims out of Customer’s use or misuse of the Information or Information or any violation of these Terms; provided, that Bersin (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Bersin of all liability); and (c) provides to Customer, at Customers cost, all reasonable assistance.

6. Term and Termination

6.1 - This Agreement commences on the date the initial Order is accepted by Bersin and continues until all subscription licenses granted in accordance with this Agreement have expired or been terminated. If Customer terminates an Order without cause prior to expiration of the initial subscription term or a renewal term applicable to such Order, Customer will not be entitled to a refund of any Information fees paid for such initial term or renewal term. Unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term, subscriptions automatically renew at the end of the current term for a renewal term that will be equal to the length of the initial subscription term. At least thirty (30) days prior to the expiration of the initial term, or any renewal term, as applicable, Bersin will either invoice Customer the then current renewal fee or charge such renewal fee to Customer’s credit card. Customer must cancel its subscription before it renews in order to avoid billing of subscription fees for the renewal term.

6.2 - Either Customer or Bersin may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement, including without limitation a failure to meet its payment obligations under this Agreement, if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein. Upon any termination for cause by Customer, Bersin shall refund any prepaid fees for the remainder of the subscription term after the date of termination.

6.3 The parties’ rights and obligations with respect to the fees and payment terms, title, confidentiality, indemnification, warranty disclaimers, limitation of liability, and governing law provisions of this Agreement shall survive termination of this Agreement.

7. Limitation of Liability

7.1 - EXCEPT (i) FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS; OR (ii) IN THE EVENT OF EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION THE INFORMATION, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID TO BERSIN UNDER THE ORDER GIVING RISE TO THE CLAIM.

7.2 - IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. GENERAL

8.1 - The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.

8.2 - Notices shall be in writing and effective upon receipt. Notices to Customer shall be sent to the contact information included in the Order. Notices to Bersin shall be sent to Bersin’s principal place of business defined herein, attention CEO.

8.3 - No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and Bersin. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than an Order expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all Orders, represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

8.4 - No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.

8.5 - Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a any circumstances beyond the reasonable control and without the fault or negligence of the party affected, then the party affected, upon giving prompt written notice to the other party, shall be excused from such performance on a day-to-day basis to the extent of such restriction (and the other party shall likewise be excused from performance of its obligations on a day-to-day basis to the extent such party's obligations relate to the performance so restricted); provided, however, that the party so affected shall use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties shall proceed whenever such causes are removed or cease.

8.6 - Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

8.7 - Bersin and Customer agree to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Information.

8.8 - This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.