END USER LICENSE AGREEMENT | LEARNING EVOLUTION

 

This License Agreement (the “Agreement”) states the terms and conditions that govern the contractual agreement between Learning Evolution, LLC (“LE”) having its principal place of business at 1431 Pacific Hwy H2 San Diego CA 92101,
and the end user (the “USER”) who agrees to the terms set forth by this Agreement.
WHEREAS, LE offers for delivery of a series of eLearning coursework modules based on the Training System coursework modules and training materials; and
WHEREAS, the USER desires to retain the services of the LE to render training services with regard to the Training System and LE hosting services, according to the terms and conditions herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties agree as follows:

Services
In consideration of the License Fee, LE hereby grants USER a non-exclusive, perpetual, irrevocable, royalty-free, fully paid license to use the Products in accordance with the terms of this Agreement during the Term (“License”). Under the License, LE will permit USER (including its wholly owned subsidiaries) employees’ access to, and use of, the following Online Training System Library of eLearning courseware modules (the “Products”).

Intellectual Property Rights, Copyrights & Trademark
The Products may contain valuable copyright, trade secrets, confidential information, and trademarks of LE, LLC. All title and copyrights in and to the Products (including but not limited to any images, photographs, animations, audio, video, music, text, and “applets” incorporated into the Product), the accompanying materials, or electronic documentation are the copyrighted property of LE, LLC. USER acknowledges and agrees that LE, LLC owns all the intellectual property rights in and to the Products and that LE, LLC retains all such rights under this Agreement. Any customized content created and/or added to the coursework modules as separate screen(s) or supplementary confidential material or content including, but not limited to, User information, will be considered confidential information of USER and will be deemed to be the intellectual property of USER. Nothing in this Agreement or a Statement of Work (unless expressly provided therein) grants to LE, LLC any right, title, or interest in or to any USER software, equipment, documents, data, logo, trademarks technology, tools, or materials or to any other intellectual property rights of USER or any of its affiliates.
Restrictions on Use
USER and its affiliates may not distribute information to any third-party organization or individual that would enable them to gain access to the Products.

Dated Material
LE, LLC is not responsible for ensuring the USER’S customization to the Online Training System Library courseware is current and up to date. If USER regulations described by the material are changed, any updating of that material will need to be scoped and a separate project will need to be initiated to update that material. LE, LLC does not guarantee complete accuracy of the USER information included in the LMS course materials at any given moment.

Cancellation
By entering into this Agreement LE acknowledges that USER may terminate or cancel this Agreement at any time. Because of LE’s substantial investment in upfront review, analysis and setup of hardware and systems costs, if USER terminates this Agreement prior to the expiration of the Initial Term, USER shall not be reimbursed for the unused portion of the License Fee. If USER terminates or cancels this Agreement during the Renewal Term, LE shall reimburse USER for the portion of the License Fee USER already paid for the number of months remaining in the Term. In the event LE breaches this Agreement and fails to cure the breach within thirty (30) days after written notice from USER, USER may terminate this Agreement and LE shall reimburse USER for the portion of the License Fee USER already paid for the number of months remaining in the Term.

Confidentiality
During the Term, USER may communicate to LE, LLC and its employees and agents, certain information that USER considers confidential or proprietary. LE, LLC shall treat any such information as confidential and shall not use it or disclose it to any third party without USER’s prior written consent.

Indemnification
LE, LLC shall indemnify, defend and hold harmless USER, its officers, directors, employees, agents, subsidiaries and other affiliates, from and against any and all third-party claims, demands, damages, liabilities, and expenses (including attorneys' fees) arising out of or related to LE, LLC breach of this Agreement, any allegation that the Products (in whole or in part) infringe, violate or misappropriate any intellectual property right of any third party, any personal injury (including, without limitation, death) or property damage arising out of the performance of the Services, or LE, LLC use of any subcontractor, including without limitation, any claim for payment by such subcontractor.

No Modification Unless in Writing
No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties.

Resolving Disputes
The parties agree to submit any dispute arising out of this Agreement to an agreed-upon arbitrator (or arbitrator selected by the AAA if the parties cannot so agree) for resolution in binding arbitration with the American Arbitration Association (AAA) in San Diego, California. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The prevailing party’s reasonable attorneys' will be paid by the non-prevailing party.
Excluding LE’s indemnification obligations under Section 9 and any breach of Section 7, IN THE EVENT THAT EITHER PARTY IS FOUND LIABLE FOR DAMAGES RELATING TO THE USE OF OR PROVISION OF PRODUCTS, ITS TOTAL LIABILITY TO THE OTHER PARTY HERETO SHALL NOT EXCEED THE PRICE PAID OR PAYABLE BY USER FOR THE PRODUCTS AND ITS USE BY USER AND USERS. BREACHES RELATED TO ALL OTHER MATTERS ARE ENTITLED TO REDRESS TO THE FULL EXTENT THE LAW ALLOWS.

Representations and Warranties
LE represents, warrants, and covenants to USER that:
LE’s performance of the Services and other obligations under this Agreement has not caused or permitted (and shall not cause or permit) USER to be in violation of any law, regulation, rule or governmental order. 

The Products comply with all applicable laws, regulations, rules, and governmental orders, including all applicable privacy laws and regulations. 

All statements regarding LE’s qualifications to provide the services and Products are true and correct and are not misleading or incomplete. 

LE is not (and will not be) under any contract, agreement or understanding that in any way prevents, limits, or hinders the performance of the Services or other obligations of LE under this Agreement. 

LE has all permits, licenses, and permissions necessary to perform the services and provide the Products under this Agreement. 

Neither the Products nor the content therein infringes, violates, or misappropriates any intellectual property right of any other party. 

LE has all rights necessary to grant to USER the rights and licenses granted under this Agreement. Except as set forth above, LE makes no other representations or warranties of any kind regarding the Product, or the content and the Products and content are provided in "AS IS" condition, and except as set forth above, LE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE WEBSITE AND THE SITE CONTENT WILL MEET USER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE WEBSITE OR THE SITE CONTENT, (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE WEBSITE OR THE SITE CONTENT AND (v) AS TO ANY PARTNER SITE OR ITS CONTENTS. No advice or information, whether oral or written, obtained by USER from LE or through the Website or Site Content will create any warranty not expressly stated herein. USER USES THE WEBSITE AND THE SITE CONTENT AT ITS OWN RISK AND LE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THEIR OPERATION, USE OR OTHER EXPLOITATION. Except for violations of Section 7 and obligations under Section 9, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE ENTITLED TO RECOVER FROM THE OTHER ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE WEBSITE OR SITE CONTENT OR USER’S USE THEREOF, EVEN IF SUCH PARTY HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

Service Levels
This Service Level Agreement (this “SLA”) sets forth certain service levels from LE for use of its Products that is important to USER in its use and operation within their Third Party LMS to provide online eLearning training program access. The service level commitments shall apply to all versions of the Products, including all modifications to the Products. The parties may amend this SLA from time to time by mutual written agreement. LE shall provide and implement quality assurance procedures that are reasonably necessary for the Products to be provided in accordance with the service level commitments set forth in this SLA. The service levels stated herein are cumulative, and are expected to be met in the aggregate, rather than in the alternative. In other words, it is not acceptable for LE to correct one service level deficiency by implementing a workaround or correction that creates one or more related or unrelated service level deficiencies. LE shall take all reasonable steps necessary to fulfill LE's service level commitments hereunder, at LE's sole expense. If USER, however, modifies or updates or changes their LMS platform and/or USER IT network environment and requires LE support to diagnose, troubleshoot and repair connectivity issues then a Statement of Work (SOW) will be prepared to cover associated cost and must be approved by USER before proceeding. When responding to service level deficiencies, LE shall: (a) proactively manage, investigate and report on the root causes of the problem; (b) create a written corrective action plan; (c) submit the action plan to USER for review and approval, upon request; (d) implement, manage and monitor the action plan until the service level deficiencies are corrected; (e) provide status reports to USER on progress, as reasonably requested by USER; and (f) take appropriate preventative measures so that service level deficiencies do not recur. The parties acknowledge that this SLA is expected to evolve over time to reflect improved performance capabilities associated with advances in the technology and methods used by LE to provide the Products. All such improvements to the service levels shall be agreed to in advance and in writing by an amendment to this SLA.

Service Level Commitments
The Products will be available to USER and its Users 99% of the time, 24/7, except for Scheduled Downtime as defined below. In the event LE fails to comply with this Service Level Commitment, LE and USER shall in good faith negotiate a prorated reimbursement of the License Fee for each period that USER or its Users are unable to access or use the Products. LE shall schedule maintenance and/or solution updates during periods when there is the least use of the Products, e.g., late evenings or weekends (“Scheduled Downtime”). LE will notify USER contact person via email 24 hours in advance of any Scheduled Downtime. Front line technical support will be provided by USER. Should USER need technical support from LE, LE provides both telephone support Monday through Friday (except holidays) from 8am to 5pm PT via 619.342.7877 and email via support@learningevoltion.com. LE will respond to all emails and phone messages within 24 hours.

 

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