License. Subject to the restrictions stated herein (the “Agreement”) Embold, Inc., an Authorized Partner of Skillsoft (US) Corporation (the “Supplier”) grants to the “Customer”, and Customer accepts, a nonexclusive, non-transferable license, without the right to sublicense, to the products and services selected and included in a Subscription Order Form (hereinafter the products and services selected shall be collectively referred to as the “Supplier Products”) for internal training purposes only, without the right to exchange during the Term of this Agreement.        

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Terms. The initial term of this Agreement commences upon execution of this Agreement and expires as noted on the Subscription Order Form. The parties may renew this Agreement by agreement in writing or by the execution of future Subscription Order Forms. The initial term and any renewal term are the “Term”.

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Restrictions. The license does not convey any ownership rights to Customer in the Supplier Product(s), Supplier’s web site architecture or other Supplier proprietary information, but only a limited use right pursuant to the Agreement. Customer shall not (a) transfer, rent, lease, loan or disclose the Supplier Product(s) or intellectual property to any third party; (b) reverse engineer, disassemble, decompile or attempt to derive source code from the Supplier Product(s); (c) modify or create derivative works based upon the Supplier Product(s); (d) remove any proprietary notices, or trademarks or service marks on any Supplier Product(s); (e) merge the Supplier Product(s), with another program; (f) use the Supplier Product(s),  for any purposes other than those stated in the Agreement; (g) have any right to any source code for the Supplier Product(s), or (h) permit any party not specifically licensed herein to use the Supplier Product(s). 

 

Customer shall ensure that only the individual users licensed herein access the Supplier Product(s). Customer will maintain records of all use and assignment of all login identifications used to access the Supplier Product(s). Supplier shall have the right to examine such records and to audit Customer’s access to and usage of the Supplier Product(s) to verify compliance with the Agreement.

 

Personal Identifiable Information. If any Personal Identifiable Information (“PII”) relating to an end user is collected from or disclosed by Customer [including any schools and students in their network in connection with this Agreement or the exercise of rights or obligations hereunder, Supplier acknowledges and agrees that (i) it will not disclose, transmit, sell or otherwise use such PII except as necessary to fulfill its respective obligations under this Agreement; and (ii) it shall provide for the security of such PII, in a manner and form compliant with the applicable federal, state and local laws and regulations, including, without limitation, non-disclosure requirements, use of appropriate technology, security practices, computer access security, data access security, security inspections, and audits. PII means any representation of information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means. Further, PII is defined as information: (a) that directly identifies an individual (e.g., name, address, social security number or other identifying number or code, telephone number, email address, etc.) or (b) which is intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification. These data elements may include a combination of gender, race, birth date, geographic indicator, and other descriptors. Additionally, information permitting the physical or online contacting of a specific individual is the same as PII. This information can be maintained in either paper, electronic or other media.

 

FERPA. Supplier acknowledges that it is subject to and will fully comply with the requirements outlined in the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 C.F.R. Part 99, as amended (“FERPA”), for the handling of applicable information. Supplier will not disclose or use any student information except to the extent necessary to carry out its obligations under this Agreement and as permitted by FERPA.

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Termination. Either party may only cancel the Agreement by giving the breaching party ten (10) days written notice if a material breach remains uncured thirty (30) days after the breaching party receives written notice thereof from the other party.  In the event that either party terminates the Agreement based on the foregoing sentence, the terminating party reserves all rights and remedies available at law, including but not limited to, as to Supplier, collection of all committed License Fees.

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In order to protect Supplier’s licensors and/or publishers intellectual property rights, Supplier may disable any individual’s access to the Supplier Product(s) immediately if such individual’s use of the license violates the terms and conditions of the Agreement.

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Taxes. The license fees set forth above do not include taxes. Customer shall be responsible for payment of all applicable taxes, however designated or incurred, in connection with the Agreement, including without limitation, state and local excise, sales, withholding and use taxes and any other applicable governmental assessments, but not Supplier’s income taxes.  If Customer fails to pay any applicable tax, then Supplier may pay such tax on Customer’s behalf and seek reimbursement from Customer.

 

Indemnification.  Supplier will defend, indemnify and hold harmless Customer and schools in its network, and their respective officers, directors, and employees from and against third party claims (including reasonable attorneys’ fees and costs) (a) alleging that the Supplier Products or any other services provided under this Agreement infringe a copyright or patent, or misappropriate a trade secret of a third party, or (b) arising out of Supplier’s breach of this Agreement. Customer will defend, indemnify and hold harmless Supplier, its officers, directors, and employees from and against third party claims (including reasonable attorneys’ fees and costs) arising out of Customer’s breach of this Agreement.

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Limitations of Liability. Neither party shall be liable for any special, incidental, indirect, exemplary, or consequential damages (including without limitation loss of profits, loss of data, costs of cover), however caused and based on any theory of liability, for any claims or causes of action arising out of or related to the Agreement. These limitations will apply even if the other party has been informed of the possibility of such damages. FURTHERMORE, EXCEPT AS TO A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THE AGREEMENT OR ARISING OUT OR RESULTING FROM CUSTOMERS USE OF ANY SUPPLIER PRODUCT(S) EXCEED THE LICENSE FEES PAID UNDER THE AGREEMENT WITH RESPECT TO SUCH SUPPLIER PRODUCT(S).

 

Warranties and Disclaimers. Supplier represents and warrants that (a) it has the legal right to enter into this Agreement and to provide the Supplier Products to Customer, (b) the Supplier Products will be performed in a professional manner by competent personnel who are appropriately trained and are familiar with the Supplier Products, and (c) the Supplier Products will substantially perform according to applicable documentation. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, SUPPLIER GRANTS NO OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED.  SUPPLIER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, AND NOT IN LIMITATION OF FOREGOING, SUPPLIER DOES NOT WARRANT THAT ANY SUPPLIER PRODUCT(S) WILL MEET CUSTOMER REQUIREMENTS OR THAT THE OPERATION OF ANY SUPPLIER PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR FREE.

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Governing Law; Severability; and Assignment. The License and the Agreement is governed by the laws of the State of Ohio, without reference to its conflict of laws provision. Both parties will comply with all applicable international, federal, state, and local laws and regulations in performing its obligations hereunder, including, without limitation, all U.S. export regulations. If any provision of this Agreement is not enforceable, it will be severed from this Agreement and the remainder will remain in full force and effect. Customer shall not assign the Agreement, without the advance, written consent of Supplier which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Customer may, without prior written consent from or notice to Supplier, assign this Agreement to its Affiliates or in connection with a merger, acquisition, asset sale or corporate reorganization. Any purported transfer or assignment in violation of the Agreement shall be null and void and of no force and effect. “Affiliate” means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Customer whether through ownership of voting securities, by contract interest or otherwise.

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Entire Agreement and Waiver. The Agreement (including Subscription Order Form) constitutes the entire understanding and agreement between the parties and supersedes all prior and contemporaneous proposals, agreements and representations between them, whether written or oral.  The terms in this Agreement shall prevail over any inconsistent terms in a Subscription Order Form. The Agreement may only be amended in writing signed by Customer and an executive officer of Supplier that explicitly states that it is intended to amend the Agreement. No terms contained in Customer purchase orders, acknowledgments, shipping documents or other forms or documents shall have any force or effect over the licenses granted herein. The failure or delay by either party in exercising any right or remedy hereunder shall not operate as a waiver of any such right, power or remedy. Waiver by either party of any default shall not waive any prior, concurrent, or subsequent defaults by the other party.

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