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STAFFING E-TRAINER
TERMS AND CONDITIONS FOR PRODUCTS AND/OR ELEARNING
Last Updated: January 14, 2019
These Terms and Conditions (the “Terms”) are part of and incorporated into the purchase order, statement of work or similar ordering document (the “Order”) executed by and between Staffing E-Trainer, Inc. (“SET”) and the client identified in such Order, all of which constitute the “Agreement” between the parties with respect to the training handbooks, workbooks, toolkits and other printed, written or other tangible materials (the “Materials”) or training development and services (the “Services’) described in the Order. In the event of any conflict among such documents, the Terms shall govern, except as expressly provided otherwise.
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1. Provision of Deliverables; License Grants.
(a) Subject to the terms and conditions of this Agreement, SET agrees to provide to Client the Materials and to perform the Services described in the Order; Client acknowledges that, if set forth on an Order, the provision of Materials or Services may be limited to specific employees, or a specific number of, of Client (each a “Designated Employees”).
(b) With respect to any Materials that are not specifically identified in the Order as “Custom Materials” (all such other materials, “Standard Materials”), SET grants to Client a limited, nonexclusive, nontransferable, revocable license (i) for its Designated Employees to receive and use the Standard Materials solely for the intended internal business purpose of Client and (ii) if the Standard Materials are delivered in connection with any instructor-led training Services provided by Client (“Session Materials”), Client may reproduce, copy and otherwise publish such Session Materials in such quantities as is reasonably necessary for distribution of the Session Materials to the Designated Employees attending the Professional Presence Seminars, solely for the purpose of making such Session Materials available to such Designated Employees. Client may indicate that such Session Materials have been prepared for Client, but shall not alter, abridge or otherwise modify the Session Materials or any part thereof. Prior to the distribution of the Session Materials to the Designated Employees, Client shall submit a sample of the reproduced Session Materials to SET for SET’s review and written approval, which approval shall not be unreasonably delayed or withheld. Without limiting other grounds for disapproving the reproduced Session Materials, SET’s reasonable determination that the quality of such Session Materials does not comply with the standards of SET’s use of its Marks (defined below) shall be a reasonable ground for disapproving the submitted Session Materials. All copies of the Session Materials subsequently printed or published by Client shall substantially conform to the approved sample. The license granted under this Section 1(b) will terminate automatically upon expiration or termination of this Agreement.
(c) With respect to any Materials identified in the Order as Custom Materials, SET grants to Client a limited, nonexclusive, nontransferable, revocable license to reproduce, copy, modify, amend, make derivative works of such Customer Materials and to use and distribute the same, but solely for Client’s internal business purposes and to Client’s employees and agents. For the absence of confusion, Client may not distribute the Custom Materials outside of Client’s organization or create any commercial product based on such Custom Materials. The license granted under this Section 1(c) will survive any expiration or termination of this Agreement by Client under Section 4, but will terminate automatically upon termination of this Agreement by SET under Section 4.
(d) The Materials are SET’s Intellectual Property, as set forth in Section 8 of these Terms. Except as expressly set forth in this Agreement, Client and its Designated Employees shall not, without SET’s prior written consent, otherwise reproduce, copy, market, sell, convey, distribute (even as to other employees or agents of Client), license, sublicense, assign, lease, timeshare, modify, amend, publish, rent, make derivative works of or otherwise use the Materials. SET may place copyright or similar notices and its name, trademarks, service marks and/or logos (collectively, the “Marks”) on the Materials, and Client shall not remove or alter any such notices or Marks.
2. Schedule of Services. With respect to any instructor-led Services to be performed by SET, except as otherwise set forth in the Order:
(a) Client may not (i) conduct any audio, visual or other recording, or otherwise fix in a tangible medium, the performance or provision of such Services, or (ii) stream, broadcast or otherwise distribute the performance or provision of such Services.
(b) The dates and times of each training session to be provided (each, a “Session”) will be set out in the Order or otherwise established by mutual agreement of SET and Client in writing (which may be via email). Cancellation of a scheduled Session may result in a cancellation fee as set forth on the Order. Further, if Client reschedules or cancels a Session, then in addition to any applicable cancellation fee, Client shall also reimburse SET for all costs or expenses incurred by SET in advance of, preparation for or connection with any such Sessions, including, without limitation, all non-refundable travel or transportation expenses or transfer fees.
3. Fees and Expenses. All fees set forth in the Order (“Fees”) and all out-of-pocket expenses reasonably incurred by SET in the performance of the Services (collectively, "Expenses") will be paid to SET upon receipt of SET’s invoice for the same (unless a different payment schedule is set forth in the Order). Any services provided by SET to Client that are not identified in the Order shall be provided at SET’s then current time and materials rates. All Fees and Expenses are exclusive of taxes imposed on the sale of the Deliverables, all of which are the sole responsibility of Client. In addition to any other rights or remedies under this Agreement, at law or equity, past due amounts will accrue interest at the rate of 1.5% per month. Client agrees to pay all reasonable and actual attorneys’ fees incurred by SET in connection with the collection of any past due amount owed to SET by Client.
4. Term; Termination. The term of this Agreement shall begin on the date of execution of the applicable Order and shall continue until final delivery of all Deliverables thereunder or earlier termination in accordance with this Section 4. In addition to any other reason for termination set forth in these Terms or in an Order, either party may terminate this Agreement immediately upon written notice in the event the other party (a) materially breaches this Agreement and failure to cure such breach within 30 days of receiving written notice of such breach (provided, however, that if Client or any Designated Employee violates any license grant or restrictions or terms relating to SET’s Proprietary Information or Intellectual Property, SET may terminate this Agreement immediately without any opportunity to cure); or (b) becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors and such proceeding is not dismissed within sixty (60) days of its filing. Except as otherwise set forth in the Order, no refund of pre-paid amounts shall be due to Client in the event of termination by SET under this Section 3. Upon termination or expiration of this Agreement, (i) SET will cease providing the Deliverables, (ii) except as otherwise expressly set forth herein, all licenses granted herein will terminate; and (iii) all amounts due to SET will immediately become due and payable. Sections 1(c), 4, 6, 7 and 9-12 of these Terms shall survive any termination or expiration of this Agreement.
5. Delivery and Risk of Loss for Materials. The following terms apply to any Materials delivered in a printed, rather than digital, format:
(a) At any time after an order for Materials is received by SET but prior to the date on which such order is shipped or delivered, Client may cancel or revise such order or reduce the quantities ordered therein, upon written notice to SET. In such event, Client agrees to pay reasonable and proper cancellation charges, taking into account expenses already incurred and commitments made by SET, as well as any other loss or expense incurred by SET by reason thereof.
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(b) SET’s delivery or shipping dates for any Materials not delivered personally are approximate only and merely represent SET’s best estimate of time required to make delivery or shipment. Shipment dates are contingent on prompt receipt by SET of all necessary shipping information. SET shall not be held responsible for failure to meet estimated shipping dates, and in no event shall SET be liable for any loss, cost, damage or expense whatsoever incurred by Client or its Clients that may result therefrom.
(c) Unless otherwise agreed in writing by the parties, deliveries of Materials shall be made F.O.B. SET’s facility in Cumming, Georgia. Client will be responsible for and shall assume all risk and liability for loss, damage or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Materials after SET’s delivery of the same to the carrier. Any loss occasioned by damage in transit will be for Client’s account, and Client shall file any damage or loss claims directly with the carrier. Unless otherwise agreed in writing by the parties, packaging methods, shipping documents and manner, route and carrier of shipment shall be at SET’s sole discretion. SET reserves the right to ship items in a single or multiple shipments. Unless otherwise agreed in writing by the parties, all freight charges and insurance costs shall be the responsibility of Client and will be invoiced as a separate line item to be paid by Client.
6. Warranty Disclaimer. ALL MATERIALS AND SERVICES PROVIDED BY OR ON BEHALF OF SET UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” AND NEITHER SET NOR ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS MAKE, AND EACH HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES AND MATERIALS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SET DOES NOT WARRANTY OR GUARANTEE ANY SPECIFIC RESULTS FROM THE MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT.
7. Confidentiality. In the performance of this Agreement, either party may disclose to the other certain “Proprietary Information,” which, for purposes of this Agreement, means information that is of value to its owner and is treated as confidential, but does not include that information that (a) is or becomes a part of the public domain through no wrongful conduct of the receiving party; (b) was or is lawfully disclosed to the receiving party by a third party without restriction on subsequent use or disclosure; (c) is independently developed by the receiving party without use of any Proprietary Information of the disclosing party; or (d) from and after the date that is three (3) years following the date of termination of this Agreement, does not meet the definition of “trade secret” under applicable law. SET’s Proprietary Information includes, without limitation, the Materials and all non-public information pertaining to the Services. Both parties acknowledge and agree that the Proprietary Information shall remain the sole and exclusive property of the disclosing party or a third party providing such information to the disclosing party. The receiving party agrees to hold the Proprietary Information disclosed by the other party in strictest confidence and not to copy, use, distribute, reveal, report, publish, disclose or otherwise transfer the Proprietary Information for any purpose other than as expressly provided by this Agreement or as required by judicial or governmental action or applicable law (including, without limitation, any applicable “open-records” or similar laws or regulations). The receiving party shall protect the Proprietary Information of the disclosing party with the same degree of protection and care the receiving party uses to protect its own Proprietary Information, but in no event less than reasonable care.
8. Client Content. Client represents and warrants that (a) it has all necessary rights, licenses, consents and approval to provide to SET all files, images, photographs, graphics, text, information or other data provided to SET by or on behalf of Client in connection with SET’s provision of the Deliverables hereunder (“Client Content”); and (b) the Client Content does not infringe or violate any proprietary rights of any third party. Client hereby (i) grants to SET a limited, nonexclusive, revocable license during the term of this Agreement to use the Client Content solely for the purposes of providing the Deliverables; and (ii) agrees to secure rights in the Client Content necessary for SET to provide the Deliverables without violating the rights of any third party, or otherwise obligating SET to Client or any third party (except as otherwise set out in this Agreement).
9. Ownership of Intellectual Property. Exclusive of any Client Content incorporated therein (if any), SET and its suppliers expressly retain title and ownership to all worldwide intellectual property rights, including without limitation, design, trade secrets, know-how, patent rights, trademarks, service marks and copyrights in and to the Materials and Services, the Proprietary Information of SET, the Materials, and any modifications, adaptations, derivative works, and enhancements made thereto by or under the direction of SET or Client (collectively, the “Intellectual Property”). Client hereby waives any claim that it may have or has to title and ownership of the Intellectual Property. Client acknowledges that, except as expressly set forth in this Agreement, no express or implied license, moral rights, or other rights of any kind are granted to Client or its Designated Employee(s) regarding the Intellectual Property.
10. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SET, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO CLIENT OR ANY OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE FEES RECEIVED BY SET THAT RELATE SOLELY TO THE SPECIFIC MATERIALS OR SERVICES AS TO WHICH SUCH CLAIM IS MADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SET, ITS SUBSIDIARIES, ASSOCIATED COMPANIES OR SUPPLIERS, BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL, PROFITS OR SAVINGS, DAMAGE TO OR REPLACEMENT OF EQUIPMENT OR PROPERTY ARISING FROM ANY CLAIMS, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE MATERIALS OR SERVICES OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT OR THE USE OF THE MATERIALS OR SERVICES, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF SET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
11. Equitable Remedies. Client acknowledges that each provision in this Agreement providing for the protection of SET’s Intellectual Property, Proprietary Information and other proprietary rights is material to this Agreement. Client agrees that any threatened or actual breach of SET’s Intellectual Property, Proprietary Information or other proprietary rights by Client shall constitute immediate, irreparable harm to SET for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring SET to post any bond or any other security. Nothing contained herein shall limit either party's right to any remedies at law, including the recovery of damages for breach of this Agreement.
12. General. This Agreement is the only agreement between the parties relating to the Deliverables, and it supersedes all prior communications or understandings relating to the Deliverables, oral or written, of either party. Under no circumstances will the terms, conditions or provisions of any purchase order or other administrative document issued by Client modify, alter or expand the rights, duties or obligations of the parties, regardless of any failure of SET to separately object to such terms, provisions, or conditions. This Agreement may be only by amended by written agreement of both parties. The parties are, and will remain, independent contractors with respect to each other. Client may not assign any of its duties or obligations, including, but not limited to, its obligation to make payment under this Agreement. All communications between the parties which are required or permitted to be in writing shall be sent by hand delivery, with receipt obtained; by recognized courier, properly prepaid; or by certified mail, receipt requested, postage prepaid and sent to the addresses specified in the Order or any other address with respect to which proper notice is given. All such communications shall be deemed received by the other party upon actual delivery or refusal. This Agreement shall be governed by and construed in accordance with the laws of the state of Georgia without regard to its rules governing conflicts of law. Client agrees that the exclusive venue for all actions, relating in any manner to this Agreement, shall be in a federal or state court of competent jurisdiction located in or having jurisdiction over Gwinnett County, Georgia. Client hereby consents and submits to the in personam jurisdiction of such courts and waives any objection based on forum non conveniens and any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above. Any cause of action for any alleged breach of this Agreement by SET shall be barred unless commenced by Client within one (1) year from the accrual of such cause or action. A waiver by either party of any breach shall not be construed to be a waiver of any other breach. A party may only waive or modify its rights under this Agreement by notifying the other party of the waiver in writing. If any part of this Agreement is deemed unenforceable, the remainder of the Agreement, or the application of the unenforceable term under different circumstances, will not be affected. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The agents of both parties have participated in the preparation of this Agreement, and the parties agree that the Agreement should not be more strictly construed against one party than the other. The provisions of the Agreement are for the benefit of the parties hereto only, and of no other person. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including but not limited to, acts of God, labor disputes, or disturbances, material shortages or rationing, riots, acts of war, acts of terrorism, governmental regulations, communication or utility failures, or casualties, provided that such party uses reasonable efforts to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. Time is of the essence.
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ELEARNING ACCESS AND USE LICENSE AGREEMENT
These Terms and Conditions (the “Terms”) are part of and incorporated into the purchase order, statement of work or similar ordering document (the “Order”) executed by and between Staffing E-Trainer, Inc. (“SET”) and the client identified in such Order, all of which constitute the “Agreement” between the parties with respect to the Staffing eTrainer course library, Skillsoft course library, and other purchased licenses of online training (“elearning”) described in the Order. In the event of any conflict among such documents, the Terms shall govern, except as expressly provided otherwise.
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This Agreement provides the terms and conditions for (i) the use of Staffing E-Trainer course modules (each, a “Course Module”) and the compilations of subject-matter related Course Modules (each, a “Course Module Track”) and (ii) access to the staffingetrainer.com website (the “Website”). Any software provided with a Course Module that is associated with a separate end-user license agreement is licensed to you under the terms of that separate license agreement.
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TERMS AND CONDITIONS
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A. License:
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1. Access and Use. Subject to the terms and conditions of this Agreement, and upon issuance of the appropriate password and user ID and payment by Licensee of the appropriate Fees, SET grants to Licensee, for each subscription to a single Course Module or a Course Module Track, a limited, nonexclusive, nontransferable, revocable license for Licensee’s own internal, noncommercial use (i) to allow one (1) individual (an “Authorized User”) to access, exchange information and data with, and otherwise use that Course Module or Course Module Track via the Website and to print one (1) copy of the workbook for each Course Module (“Course Workbook”) and retain that copy for personal use in connection with the Course Module(s) and (ii) to authorize one (1) Supervisor to have access to User Information (as defined in Section G below) and the Learning Management System (“LMS”) to review all Course Module results for that Authorized User. For purposes of clarity and not by way of limitation, the license for each subscription to a Course Module or Course Module Track and each applicable Course Workbook under this Agreement is for use and access by one (1) Authorized User only. A Supervisor must obtain a separate subscription to a Course Module in order to access materials for that Course Module other than the LMS.
For purposes of this Agreement, “Supervisor” shall mean an employee or representative of Licensee authorized to access the LMS of an Authorized User solely on Licensee’s behalf. Licensee hereby represents and warrants Licensee has express authorization of each Authorized User for SET to grant a Supervisor access to the LMS and User Information for a particular Authorized User.
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2. Limitations on License. All rights not expressly granted to Licensee under this Agreement are reserved and retained by SET. Licensee shall not, and shall ensure that all Authorized Users and Supervisors shall not, directly or indirectly, (i) modify, create derivative works from, adapt or translate any Course Module or Course Workbook; (ii) reverse engineer, decompile, or disassemble any Course Module; (iii) offer for sale, sell, distribute, re-distribute, transfer, assign, outsource, rent, lease, sublicense or otherwise provide access to any Course Module to any person or entity other than the Authorized User or its Supervisor; (iv) duplicate, reproduce or copy any Course Module or any information obtained or derived from any Course Module, including, without limitation, the Course Workbook, except as expressly permitted under this Agreement; or (v) insert a virus, Trojan Horse or other disabling mechanism onto the Website. Any access or use of any Course Module or the Website that is inconsistent with the terms of this Agreement is unauthorized and strictly prohibited without the express prior written consent of SET.
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3. Security Elements; Password. Only Authorized Users and applicable Supervisors are permitted to access and use the Course Modules and LMS, respectively. Each Licensee is responsible for ensuring its Authorized Users and Supervisors keep their respective passwords and user IDs assigned to them by SET secret and confidential. Licensee agrees it is solely responsible for any communications or other uses that are made using its password and user IDs, as well as for any obligation which may result from such use. Licensee is responsible for changing a password if it believes that a password has been stolen or might otherwise be misused. Licensee shall notify SET immediately of any unauthorized use of any password or user ID or any other breach of security that is suspected by Licensee.
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B. Fees: In consideration for the rights and licenses granted herein, Licensee shall pay to SET the subscription fee for access and use of each Course Module or Course Module Track as set forth on the applicable invoice provided by SET to Licensee (“Fees”). Licensee acknowledges that use of the Course Modules and the Website may incur telecommunication charges or other charges for which Licensee is solely responsible. Licensee is responsible for providing its own Internet access. Licensee shall pay, and be responsible for any and all sales taxes, use taxes, and any other taxes imposed by any jurisdiction as a result of (i) the entry into this Agreement; (ii) the performance of any of the provisions of this Agreement; (iii) use or access to the Course Modules or User Information; or (iv) the transfer of any rights or any other grant hereunder.
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C. Term and Termination:
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1. Term. This Agreement shall commence upon Licensee’s clicking the “Submit” button below and SET’s receipt of the payment of Fees (“Effective Date”) and shall continue, unless terminated as provided herein, with respect to a subscription for a single Course Module, for a period of ninety (90) days, and with respect to a subscription for a Course Module Track, for a period of one (1) year, unless otherwise stated on the applicable invoice for that subscription (for each subscription period, a “Term”). This Agreement shall expire upon the termination or expiration of the last active subscription.
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2. Termination by SET. SET may terminate this Agreement or prevent access by Licensee, an Authorized User and/or the Supervisor to any Course Module or the LMS, respectively, at any time upon thirty (30) days prior written notice to Licensee in the event SET discontinues offering that Course Module. SET may immediately and without notice suspend access and use by an Authorized User and/or its Supervisor to any Course Module or the LMS, respectively, and may terminate this Agreement if any of the following events are not cured by Licensee within thirty (30) days after written notice thereof: (i) Licensee fails to pay any Fees, charges, or costs when due; or (ii) SET determines that Licensee, an Authorized User, or a Supervisor, has breached any other obligation, representation or warranty of this Agreement.
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3. Termination by Licensee. In the event a Course Module is inaccessible to Licensee for a period of thirty (30) days due solely to the direct fault of SET and the inability to access that Course Module is not cured within thirty (30) days of SET’s receipt of written notice thereof, SET may elect, in its sole discretion, to (i) extend the Term of Licensee’s subscription for that Course Module for the period of time during with the Course Module was inaccessible; or (ii) terminate this Agreement upon thirty (30) days prior written notice to SET. In the event of termination under this Section C(3), SET will refund to Licensee a pro rata amount of the Fees paid by Licensee for that particular Course Module that SET reasonably determines to be equal to the Term of the subscription that Licensee did not receive. The remedies provided in this Section C(3) shall be the sole remedies available to Licensee due to SET’s termination of this Agreement under this Section C(3).
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4. Effect of Expiration or Termination. In the event this Agreement expires or is terminated for any reason, all licenses and rights granted herein are immediately terminated, and Licensee, each Authorized User, and its Supervisor shall immediately cease using and accessing Course Modules upon such expiration or termination.
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5. Survival. Sections A(1) (last sentence), A(2), B (last two sentences), C(4)-(5), D (last two sentences), F, G-O, Q and R shall survive termination or expiration of this Agreement.
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D. Licensee Evaluation: SET encourages Licensee to report to SET any defects, errors, or faults Licensee finds in a Course Module, or relating to any access or use thereof, or any exchange of information or data therewith. Such report should document, to the best of Licensee’s ability, the events that led up to the problems(s) with the Course Module and the manifestations of such problem(s). SET also encourages Licensee to inform SET of Licensee’s opinions regarding the design of the Course Module, its performance, its suitability for its projected use, its limitations, its appearance, its ease of access and use and the exchange of information and data therewith. This information and any other comments, information, data or suggestions that Licensee provides to SET shall be collectively referred to herein as “Feedback.” Feedback may be conveyed to SET from time to time during the Term. Licensee acknowledges and agrees that SET shall own all rights, title and interest in and to all Feedback, including without limitation, any ideas, concepts, know-how, or techniques contained in such Feedback and in accordance with Section I below, shall be free to reproduce, use, disclose, exhibit, display, perform, transform, create derivative works based on such Feedback, distribute, offer for sale, sell, transfer and assign such Feedback to others without limitation. SET shall have no obligation to keep confidential any Feedback. This Section does not affect Licensee’s obligation to keep such Feedback confidential pursuant to Section J hereof.
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E. Support: The Course Modules and the Website may be hosted by a third party. Neither SET nor any third party host shall have an obligation under this Agreement to correct any bugs, defects or errors in the Course Modules or the Website or to provide support or service level commitment.
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F. Third Party Software: Licensee acknowledges and agrees that certain portions of the Course Modules and the Website may use or communicate with software developed by third parties or with third-party Internet service providers not under the control of SET (collectively, "Third Party Software and Services"). Licensee agrees to look solely to such third party vendors for remedies, losses or damages related to the Third Party Software and Services.
G. User Information: Subject to Section D (Licensee Evaluation) and Section I (Proprietary Information), SET does not claim any ownership of any data provided by Licensee or its Authorized Users in connection with use of the Course Modules (“User Information”). Licensee grants SET a perpetual, irrevocable, worldwide, nonexclusive, royalty-free, fully paid-up right and license to the User Information to: (i) reproduce, transmit, perform, display, access and use said User Information as SET deems necessary in providing the Course Modules to Authorized Users and their Supervisors; (ii) conduct analyses in order to make or offer changes or enhancements to services, features or functionalities available from SET; and (iii) perform statistical analyses of Licensee behavior, characteristics and experience in order to measure actual or potential interest in or use of various features, functionalities, or offerings.
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H. Licensee Representations and Acknowledgements: Licensee represents and warrants that (i) Licensee is authorized to enter into this Agreement and perform its obligations hereunder; and (ii) all information provided to SET in connection with this Agreement, including, without limitation, the Feedback and registration information, is true, correct and accurate. Licensee shall promptly provide SET with an update in writing if any such information changes. Licensee acknowledges and agrees that (i) the information and data provided by SET in the Course Modules constitutes suggested training programs only, is provided for informational purposes only, does not constitute advice, and is not an assurance or guarantee of enhanced performance or improved results of an Authorized User; and (ii) Licensee is not relying on the information or data provided by the Course Modules, including without limitation, test results, in any way as training advice.
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I. Proprietary Information: Licensee acknowledges and agrees that SET owns all rights, title and interest, including without limitation, all copyright, patent, trade secret, and all other intellectual property rights, and any changes, modifications, improvements, or corrections to or derivative works of, the: (i) Course Modules; (ii) the Feedback referenced in Section D above; (iii) and Aggregate Information. For purposes of this Agreement, “Aggregate Information” means non-personally identifiable, descriptive or aggregate data or information derived from User Information or generated or maintained by SET as a result of an Authorized User’s interaction with, access to, or use of a Course Module. Licensee agrees: (i) not to alter or remove any copyright or other proprietary rights notice or identification which indicates SET’s ownership, or insert any copyright or other proprietary rights notice or identification which indicates ownership by any person or entity other than SET, of any part of the Course Modules or Course Workbook; and (ii) to notify SET promptly and in writing of the circumstances surrounding any possession or use of the Course Modules or Course Workbook by any person or entity other than those authorized by this Agreement.
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J. Confidentiality: Licensee acknowledges and agrees the Course Modules, Feedback, and Aggregate Information contain valuable confidential information owned by SET, including but not limited to the features, operation, security features, performance, capabilities, and functionality of each Course Module, content and flow of the Course Module screens, the method and pattern of use interaction with the Course Module, and Licensee’s assessment, evaluation and comments regarding the Course Modules. Licensee shall take all reasonable precautions to prevent disclosure of the confidential information and trade secrets of SET, and shall not, for or on behalf of Licensee or any other person, directly or indirectly, use or disclose such confidential information except (i) as expressly authorized under this Agreement in order to fulfill Licensee’s obligations hereunder; (ii) as authorized in writing by SET; or (iii) as required by law or a governmental agency. These covenants of confidentiality will continue and must be maintained during the Term of each subscription and thereafter until the confidential information no longer qualifies as confidential under applicable law.
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K. Limitation of Liability: In no event shall SET or any of its affiliates, or any of their respective officers, directors, employees, agents, representatives, successors or assigns be liable to Licensee, any Authorized User, any Supervisor or any third party for any indirect, incidental, special, punitive, consequential, reliance, or other damages or penalties, including, without limitation, loss of profits, or lost savings, income, revenue, data or use, whether in an action in contract or tort, including without limitation, negligence, arising out of this Agreement. In no event shall SET’s liability for any direct damages, penalties, or loss, regardless of the form of the action or claim, exceed the total amount of Fees paid to SET by Licensee under this Agreement.
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L. Disclaimer of Warranties: SET makes no representation or warranty that the Course Modules will meet Licensee’s requirements. Licensee understands the Course Modules and Website are provided “AS IS” in their present state and condition. No warranty, representation, condition, undertaking, or term, express or implied, written or oral, statutory or otherwise, as to the condition, quality, availability, durability, performance, non-infringement, merchantability, or fitness for a particular purpose or use of a Course Module, the Website or otherwise is given or assumed by SET, its affiliates, or any of their respective officers, directors, employees, agents, representatives, successors or assigns, and all such warranties, representations, conditions, undertakings, and terms are hereby excluded to the fullest extent permitted by law. SET makes no representation or warranty with respect to the accuracy or completeness of the information or data produced or displayed in connection with the Course Modules or the Website. SET does not guarantee continuous, uninterrupted, or secure access to the Course Modules or the Website and access to such may be interfered with by numerous factors outside of SET’s control. SET is not liable for any damages of any type caused by such interference.
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M. Indemnification: Licensee shall indemnify and hold harmless, and, at SET’s option, defend SET, its parent and its affiliates, and their respective officers, directors, employees, agents, successors and assigns (“SET Indemnitees”) from and against any and all claims, damages, and expenses, including reasonable legal fees, incurred directly or indirectly, by and SET Indemnitee that arise out of or relate to a breach or non-performance by Licensee, its Authorized Users or their Supervisors of any representation, warranty, or obligations under this Agreement.
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N. Governing Law and Jurisdiction: This Agreement shall be construed and enforced in accordance with the laws of the State of Georgia, without reference to conflict of laws principles. Licensee expressly consents to the sole and exclusive jurisdiction of the United States federal and state courts in the State of Georgia. Notwithstanding anything herein to the contrary, SET shall be entitled to interim relief or provisional remedies before any court having jurisdiction.
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O. Notices: All notices, requests or other communications required by this Agreement shall be in writing and shall be deemed to have been duly given when: delivered personally, mailed by certified or registered mail, prepaid, return receipt requested, or by recognized international overnight delivery service (upon date of mailing) to the parties or their permitted assignees at the address indicated above for SET and directed to the attention of: Amy Munroe, and as set forth in the registration materials for Licensee (or other address as shall be given in writing by either party to the other party).
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P. Assignment: Licensee may not assign or otherwise transfer this Agreement or any license or rights granted hereunder or delegate or otherwise transfer its obligations hereunder without the express written consent of SET, which consent may be withheld for any reason.
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Q. Entire Agreement: This Agreement and Course Module invoices constitute the entire understanding and contract between the parties and supersedes any and all prior or contemporaneous oral and written communications regarding the subject matter, all of which communications are merged herein. If there is any conflict between terms and conditions contained in any invoice and this Agreement, the terms and conditions of the invoice shall apply and control.
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R. Miscellaneous: In the event any provision of this Agreement is held to be invalid or unenforceable, that provision will be modified to the minimum extent necessary to be enforceable and fulfill the purposes of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect. All amendments and modifications of this Agreement shall be made by written document signed by both parties. Waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. This Agreement shall be effective and binding upon SET and Licensee, and their successors and permitted assigns. SET will not be liable for any delays, system downtime or failure of the Course Module to perform or be accessible, or any inaccessibility of the Licensee Information, if due to any cause or conditions beyond SET’s control, including, but not limited to, acts of God, strikes, lockouts, riots, epidemics, war, governmental regulations, fire, communication line failure, or power failures. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership or employment relationship between the parties, nor shall either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
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This Agreement will be executed upon clicking the “I agree to the Terms & Conditions and Return Policy” and each counterpart shall constitute a valid, binding Agreement upon full execution.
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