Self-Directed Learning Engine™ (SDLE) Terms Of Use / Subscription Agreement
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE-AS-A-SERVICE (SAAS) SUBSCRIPTION AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE. EDUTAINMENT MEDIA, INC. (dba “SkillDirector”) IS WILLING TO LICENSE THE USE OF THE SOFTWARE (AS DEFINED BELOW) TO YOU AS THE INDIVIDUAL, LEGAL ENTITY OR COMPANY (REFERENCED BELOW AS “THE USER”) THAT WILL BE USING THE SOFTWARE ONLY ON THE CONDITION THAT THE USER ACCEPTS ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE USER AND EDUTAINMENT MEDIA BY IN ANY WAY INDICATING ASSENT ELECTRONICALLY, OR BY ACCESSING THE APPLICATION, THE USER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE USER DOES NOT AGREE TO THIS AGREEMENT, THE USER AGREES NOT TO USE OR ACCESS THE SOFTWARE AND THIS SITE.
1. Definitions. For the purposes of this Agreement, the following terms shall have the corresponding definitions:
“Licensor” shall mean Edutainment Media, Inc. / Edutainment Media is doing business as SkillDirector;
“Client” shall mean the company or organization providing the SDLE to users;
“Allotment” shall mean the number of Users (as defined below) subscribed to by Client during a given Term;
“Available Hours of Operation” shall mean twenty-four (24) hours per day, seven (7) days per week exclusive of Scheduled Downtime, described in Section 9.2, below, and downtime arising from causes beyond the reasonable direct control of LICENSOR, such as the interruption or failure of telecommunications or digital transmission links, hostile network attacks or a Force Majeure event, as set out in Section 13, below;
“Available Hours of Support” shall mean the hours set out in the Documentation during which time Client may obtain technical support for the Services;
“Client Data” shall mean any data, such as an address record, telephone number or user query, or other material submitted by Client to the Service or provided by Client to LICENSOR for the performance of the Service;
“Documentation” shall mean LICENSOR’s guide for the Service maintained on LICENSOR’s website that describes the functionality and service level support for the Service;
“Service” shall mean access to the product and services offered by LICENSOR described in Exhibit 1;
“Subscription Order” shall mean Exhibit 1 or a subsequent document pursuant to which Client acquires the right to access the Service;
“Term” shall mean the term of the Agreement;
“User” shall mean the individual person utilizing the SDLE software;
2. License Grant of Rights. LICENSOR hereby grants Client a non-exclusive, non-transferable right to access and use the Service identified in the Subscription Order during the term of the Subscription Order, subject to the terms of this Agreement and the Subscription Order. LICENSOR reserves all rights to the Service not expressly granted by this Agreement.
3. Term and Termination.
3.1 This Agreement is effective on the Effective Date and shall remain in effect for the term of the Client's contract.
3.2 Upon termination of this Agreement or expiration of the term of a Subscription Order, Client shall immediately cease use of the Service and LICENSOR and Client shall promptly return all Confidential Information of the other party. Sections 4, 6, 7, 8, 10, 11, 16 and 17 shall survive termination of this Agreement indefinitely or to the extent set out therein.
4. Fees; Payment Terms.
4.1 Client shall pay to LICENSOR the fees set out in each Subscription Order. Except as otherwise set out in a Subscription Order, all fees are stated in and shall be paid in United States dollars. Client shall also be responsible for the payment of any applicable sales, use, value added, personal property, Internet-related or other taxes and government charges imposed on the Services, except taxes relating to LICENSOR’s net income.
4.2 Client agrees to purchase access to the Service as indicated in the applicable Subscription Order, which may be used during the term of the Subscription Order.
5. Client Responsibilities.
5.1 Except as otherwise provided in a Subscription Order, Client shall use the Service solely for its internal business purposes or for association members, and shall not use the Service on behalf of or make the Service available to any third party. All Client Data submitted to the Service must be submitted in LICENSOR’s submission format in accordance with the Documentation or any other format agreed to by the parties. Client shall also comply with applicable laws governing use of the Services, including, without limitation, any data protection or privacy laws.
5.2 Client shall identify to LICENSOR its personnel responsible for Client’s use of the Service, including any technical, administrative and contract matters. Client shall be solely responsible for the content of all Client Data submitted to the Service and shall comply with all laws, rules and regulations relating to the use, disclosure and transmission of such Client Data.
5.3 Client shall not, directly or indirectly:
a) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the SDLE or underlying ideas or algorithms of the SDLE, or create derivative works from the SDLE, copy or recreate or any portion of the SDLE;
b) copy, sublicense, sell, rent, lease, distribute or otherwise transfer rights to the SDLE or any portion of the SDLE
c) remove, delete or modify any copyright notices or any other proprietary notices or legends on, in or from the SDLE;
d) use the SDLE in any manner that could damage, disable, overburden, or impair SkillDirector's or any other party’s search services, servers, or other services; or
d) use the SDLE in any manner not authorized by this agreement.
The occurrence of any of the foregoing shall be deemed a material breach and LICENSOR may immediately terminate this Agreement upon notice to Client.
5.4 No use is acceptable for the purpose of creating or enhancing one’s own application, or for other competitive purposes.
6. Confidentiality.
6.1 During the term of this Agreement, each party may have access to certain confidential and proprietary information of the other party, (collectively, the “Confidential Information”). Confidential Information shall include, but is not limited to: (i) the Service, Documentation, Client Data; (ii) customer lists, prospect lists, existing agreements with vendors and business partners of either party, pricing proposals; (iii) marketing, sales, financial and other business information, data and plans; (iv) research and development information; (v) formulas, methods, know-how, processes, designs, new products, performance tests, proprietary computer software, bug fixes, reported problems with the Service; (vi) information concerning the service providers of either party; and (vii) any other information identified in writing as confidential or information that the receiving party knew or reasonably should have known was confidential.
6.2 Confidential Information shall be used solely for each party’s performance under this Agreement and the exercise of its rights hereunder and shall not be disclosed to any third party. LICENSOR may, subject to the terms of this Agreement, disclose Client’s Confidential Information to any entity controlling, controlled by or under common control with LICENSOR or a third party consultant or contractor assisting LICENSOR with the Service or any of LICENSOR’s other obligations under this Agreement. LICENSOR shall require such third party consultant or contractor to agree in writing to confidentiality provisions at least as protective of confidential information as the provisions set out herein. Each party shall take reasonable precautions, at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information in strict confidence.
6.3 Confidential Information shall not include any information that the receiving party can establish: (i) is or subsequently becomes publicly available through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to disclosure of such information; (iii) is subsequently disclosed to receiving party by a third party who is not in breach of an obligation of confidentiality; or (iv) is independently developed by the receiving party without the use or benefit of the Confidential Information. Confidential Information may be disclosed under a court order, or a valid subpoena, to the extent counsel for the receiving party determines in its reasonable discretion that the disclosure of such Confidential Information is reasonably required and promptly notifies the disclosing party in writing of such determination and provides the disclosing party an opportunity to seek an appropriate protective order prior to disclosing such Confidential Information.
6.4 Either party may be irreparably damaged if the obligations under this Section are not enforced and such party may not have an adequate remedy in the event of breach by the other party of its obligations. The parties agree, therefore, that such party may be entitled, in addition to other available remedies, to an injunction restraining any actual, threatened or further breaches of the other party's obligations under such Section or any other appropriate equitable order or decree.
7. Proprietary Rights; Suggestions. Client shall retain all right, title and interest in and to all Client Data. Client grants LICENSOR a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation of the Service.
8. Non-infringement; Indemnification.
8.1 LICENSOR shall indemnify, defend and hold Client harmless from any claim that the Service provided by LICENSOR hereunder infringes or misappropriates any copyright, patent, trademark or trade secret. LICENSOR shall have control of the defense and shall defend at its own expense, any claim or litigation to which this indemnity relates. Client shall notify LICENSOR promptly of any such claim and shall reasonably cooperate with LICENSOR, upon LICENSOR’s request and at LICENSOR’s cost, to defend such claim.
8.2 In the event of an infringement claim or if Client’s use of the Service is otherwise enjoined, LICENSOR shall have the right to: (i) offer a non-infringing replacement Service, at no cost to Client, which replacements shall be functionally equivalent to the Service (ii) procure, at no cost to Client, the right to continue to use the Service, or (iii) direct Client to terminate use of the Service. If LICENSOR directs Client to terminate use of the Service, Client's remedies, in addition to the indemnification set out herein, shall be limited to a refund of any prepaid but unused fees for the Service.
8.3 LICENSOR shall not indemnify Client or be liable for claims arising from the use of the Service with data, hardware or software not provided by LICENSOR or Client's use of the Service other than as described in this Agreement and the Documentation.
8.4 Client shall indemnify, defend and hold LICENSOR harmless against any claim arising from: (i) Client’s use of the Service in a manner not permitted under this Agreement; (ii) a claim that the Client Data or any other data, files or other materials provided by Client to LICENSOR infringes any patent, copyright or trademark or misappropriates any trade secret; (iii) a violation of any law, rule or regulation regarding the protection of personal data or the use or access to the Service; or (iv) acts of gross negligence or willful misconduct. Client shall have control of the defense and shall defend at its own expense, any claim or litigation to which this indemnity relates. LICENSOR shall notify Client promptly of any such claim and shall reasonably cooperate with Client, upon Client’s request and at Client’s cost, to defend such claim.
9. LICENSOR Responsibilities; Support.
9.1 LICENSOR shall use best efforts to make the Services available during the Available Hours of Operation. Support for the Service shall be available during the Available Hours of Support. Support shall consist of electronic technical support to assist Client with the use of the Service and shall be provided in accordance with the Documentation.
9.2 The Service may be inaccessible or inoperable during certain periods to permit LICENSOR to perform maintenance support services (“Scheduled Downtime”). LICENSOR shall use reasonable commercial efforts to minimize any disruption, inaccessibility and/or inoperability of the Services in connection with the Scheduled Downtime or other disruption of Service.
10. Warranties; Disclaimers.
10.1 LICENSOR represents and warrants to Client that the Service shall materially conform to the Documentation. LICENSOR further represents and warrants that any consulting or support shall be performed in a professional manner in accordance with generally accepted industry standards and practice. LICENSOR does not warrant the operability or accuracy of any Client Data processed by LICENSOR.
10.2 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT, LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. EXCEPT AS PROVIDED IN SECTION 8, LICENSOR SHALL NOT BE LIABLE FOR ANY LOSS OF CLIENT DATA OR LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE SERVICE.
11. Limitation of Liability. EXCEPT FOR LICENSOR'S LIABILITY UNDER SECTION 8, LICENSOR’S TOTAL LIABILITY TO CLIENT ARISING OUT OF THIS AGREEMENT IN TORT, CONTRACT OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO LICENSOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF SUCH CLAIM. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
13. Force Majeure. Neither party shall be liable for and each party shall be excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond its reasonable control, including, but not limited to, governmental actions, including postal authorities, fire, shortages, civil disturbances, transportation problems, interruptions of power or communications, failure of Internet service, hosting or telecommunication service providers, natural disasters, acts of war or terrorism or acts of God.
14. Assignment. Client shall not assign any of its rights or obligations under this Agreement, including the Subscription Order without the prior written consent of LICENSOR, which consent shall not be unreasonably withheld, delayed or denied.
16. Arbitration and Applicable Law.
16.1 This Agreement shall be governed by the laws of the State of Florida without reference to principles of conflict of laws.
16.2 Subject to Section 6, any controversy or claim arising out of or relating to this Agreement or the breach thereof, including the determination of whether a dispute between the parties is subject to this provision, shall be settled by binding arbitration. The arbitration shall be held in the Orlando, Florida metropolitan area in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. In no event shall the arbitrator award punitive or exemplary damages. The decision of the arbitrator shall be rendered within thirty (30) days following conclusion of the arbitration, shall be in writing and shall set forth in detail the reasons for such decision. Judgment upon the award may be entered in any court of competent jurisdiction.
16.3 If any action or proceeding (including arbitration) is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees arising from such action or proceeding.
17. Audit Rights. LICENSOR will periodically audit Client’s user count via a report in the system to determine compliance by Client with the terms and conditions of this SOW.
18. General.
18.1 No waiver of or failure to act regarding any breach of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or other provisions hereof.
18.2 Any notice alleging a breach of this Agreement shall be in writing and shall be sent by overnight courier or delivered in person to the party's address set forth in this Agreement. Any other notice required to be provided by either party under this Agreement may be sent by United States mail or email to the individual designated by Client, and to LICENSOR at the email addresses designated in the applicable Subscription Order.
18.3 If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed herefrom and the remaining provisions of the Agreement shall remain in full force and effect.
18.4 If Client desires to retain LICENSOR to provide any consulting services related to Client’s use of the Service, Client and LICENSOR shall execute a separate consulting statement of work.
19. Entire Agreement. This Agreement constitutes the entire agreement between LICENSOR and Client, and supersedes all proposals, purchase orders, understandings, representations, prior agreements or communications relevant to Client’s use of the Service. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Client subsequent to the execution of this Agreement or a Subscription Order and such preprinted terms shall have no force or effect. Client has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. Neither this Agreement nor a Subscription Order shall be construed against the party that prepared such document, but instead shall be construed as if both parties prepared the Agreement or Subscription Order.
Fees, users and other details are part of individual agreements.