“The Instructor’s Edge”
Software License Agreement
Important—Please Read Carefully
This Software License Agreement, along with all materials referenced herein (“Agreement”) is a legal agreement between an entity (“User”) and Training Excellence, Inc. (“TEI”) to permit User to access and use, subject to the terms of this Agreement, TEI’s software identified on the license agreement page, http://www.trainingexcellenceinc.com and accompanying documentation provided electronically (“Software”).
Professional Services relating to User’s use of the Software for porting and design services are available from TEI under separate contract. Contact TEI at http://www.trainingexcellenceinc.com.
USER MUST READ THIS AGREEMENT CAREFULLY BEFORE INDICATING ACCEPTANCE AT THE END BY CLICKING THE “I ACCEPT” BUTTON.
IF USER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, CLICK THE “I DO NOT ACCEPT” BUTTON AT THE END OF THIS AGREEMENT AND USER WILL NOT BE PERMITTED TO ACCESS AND USE THE SOFTWARE.
Subject to the terms of this Agreement, TEI grants User a nonexclusive, nontransferable license to access and use the Software for internal business training purposes only, without the right to sublicense such rights, provided User unconditionally agrees to access and use the Software in accordance with this Agreement (the “License”). Any updates, modifications, enhancements or new versions of the Software provided or made available to User by TEI shall be considered Software subject to this Agreement.
TEI may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Software without notice to User or any liability to TEI or any TEI Parties (as defined in Section 2); however, TEI agrees to make commercially reasonable efforts to provide User with prior notice of any such changes.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
(A)THE SOFTWARE ARE PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TEI AND ITS DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS AND AGENTS (“TEI PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY;
(B)NEITHER TEI NOR ANY TEI PARTY WARRANTS THAT THE SOFTWARE IS, OR WILL BE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS;
(C)USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF TEI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;
(D)EACH OF TEI AND THE TEI PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS OR EFFECTIVENESS OF THE RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY USER FROM ACCESSING AND/OR USING THE SOFTWARE OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND
(E)USE OF THE SOFTWARE AND REPORTS IS ENTIRELY AT USER’S OWN RISK, AND TEI AND EACH OF TEI PARTIES SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFORE.
3.LIMITATIONS ON LIABILITY.
THE TOTAL LIABILITY OF TEI AND THE TEI PARTIES IN THE AGGREGATE TO USER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE AND THIS AGREEMENT SHALL BE LIMITED TO THE PAYMENTS RECEIVED FROM USER UNDER THIS AGREEMENT. TEI AND THE TEI PARTIES SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SOFTWARE AND/OR SERVICES, WHETHER TEI AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). TEI AND THE TEI PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE, INCLUDING ANY REPORTS OR NUMERIC RESULTS, WHETHER TEI AND THE TEI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TEI AND USER, AND THE PRICING FOR THE LICENSE REFLECTS SUCH LIMITATIONS. IF USER IS NOT SATISFIED WITH THE SOFTWARE, THE ENTIRE LIABILITY OF TEI AND THE TEI PARTIES, AND USER’S EXCLUSIVE REMEDY, SHALL BE TO IMMEDIATELY STOP ACCESSING AND USING THE SOFTWARE AND CONTACTING TEI WITHIN 60 DAYS OF AGREEING TO THIS AGREEMENT AND REQUESTING A FULL REFUND OF THE FEES PAID BY USER TO TEI UNDER THIS AGREEMENT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.
4.Registered and Licensed Users.
In order for User to access and use the Software, User shall register with TEI, provide TEI with an e-mail address, pay the license fee (“Fee”) and obtain a unique password (“Password”) for accessing the Software. The Fee shall be determined at the time of registration and is non-refundable upon use of the Password.
Upon receiving a Password, User may issue unique passwords to its employees and authorized contractors, up to the number of licensed users paid for by User (“Licensed Users”). TEI and User acknowledge and agree that TEI may obtain e-mail addresses from Licensed Users upon their accessing and using the Software. User is responsible and wholly liable for all acts or omissions committed under User’s Password and any and all passwords issued by User to Licensed Users.
5.User Representations and Warranties.
User represents and warrants to TEI that this Agreement shall be binding on User, and, unless User is an individual, User represents and warrants that this Agreement was executed by an authorized signatory of User with the authority to enter into binding agreements on behalf of User.
The Software is protected by applicable United States and foreign laws and treaties, including copyright laws and treaty provisions. TEI or its licensors own all rights, title and interests in the Software, including trade secrets, patents, copyrights and database rights, and the Software shall remain the sole and exclusive property of TEI or its licensors. Except as provided in Section 1 of this Agreement, User has no right, title, interest or license in the Software, and is granted none.
As between TEI and User, all User Data (as defined in Section 8) input into the Software is owned exclusively by User. User Data shall be considered User confidential information subject to the terms of this Agreement.
Except as otherwise expressly provided in this Agreement, User agrees to abide by the following limitations and restrictions on the License:
(a)Only use the Software in the manner and for the training purposes expressly specified in this Agreement;
(b)Not decompile, disassemble, analyze or otherwise examine the Software for the purpose of reverse engineering (except to the extent this restriction is expressly prohibited by applicable law);
(c)Not delete or in any manner alter any notices, disclaimers or other legends contained in the Software or appearing on any screens, documents, reports, numeric results or other materials obtained by User through use of the Software (“Notices”);
(d)Reproduce and display all Notices on copies User makes, in accordance with this Agreement;
(e)Not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access and/or use of the Software;
(f)Not attempt to access any systems, programs or data of TEI or any TEI Party that are not licensed under this Agreement, or otherwise made available by TEI or a TEI Party for public use;
(g)Not copy, reproduce, republish, upload, post, transmit, or distribute the Software, or any portion thereof, or facilitate or permit a third party to do so;
(h)Not use any device or software to interfere or attempt to interfere with the proper operation of the Software;
(i)Not ship, transmit, transfer, or export the Software into any country or use the Software in any manner prohibited by United States export laws, restrictions or regulations;
(j)Not modify or prepare derivative works from the Software;
(k)Not transmit the Software electronically or allow access to the Software over a network or a public computer-based information system which permits access to a greater number of users than licensed by User;
(l)Not use the Software in multiple computer or multiple user arrangements unless that use is covered by a separate license for each computer or user;
(m)Not rent, lease or distribute or otherwise transfer possession of any copy of the Software to any third party, and
(n)Abide by all applicable local, state, national and international laws and regulations
User agrees that TEI and the TEI Parties are permitted to access any information or data User enters or provides while accessing or using the Software (“Data”) to ensure the proper access and use of the Software by User, in accordance with this Agreement and to maintain and troubleshoot Software. In the event of any loss or damage to User’s Data, User’s sole and exclusive remedy shall be for TEI to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such Data, reports or numeric results which TEI has maintained in accordance with its standard archival procedures.
User acknowledges that the Software constitute and contain confidential, proprietary and copyrighted information and subject matter of TEI and TEI Parties (“Confidential Information”). User agrees to not, directly or indirectly, without TEI’s prior written consent, use the Confidential Information for any purpose other than as expressly permitted under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate Confidential Information to a third party; or permit any third party to use such Confidential Information.
Confidential Information shall not include information that is shown by competent evidence:
(a)Is in or lawfully enters the public domain without breach of this Agreement;
(b)User can demonstrate was possessed by User prior to first receiving it from TEI or an TEI Party;
(c)Was developed by User independently and without use of or reference to the Confidential Information; or
(d)Was lawfully received by User from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
Notwithstanding the foregoing, each party shall be permitted to disclose Confidential Information of the other party if such disclosure is required by law, provided that the party required to disclose Confidential Information of the other party shall
(a)Give prompt notice of such requirement to the other Party so it will have the opportunity to seek a protective order or other appropriate remedy; and
(b)Cooperate in the other party’s attempts to obtain confidential treatment of such Confidential Information.
10.Trade Names and Trademarks.
This Agreement does not grant to any party a license to use any trademark, trade name or logo of the other party, and each party recognizes that the trademarks, trade names and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names and logos. Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party’s trademarks, trade names or logos.
Each party acknowledges that a violation of Sections 1, 7, 9 or 10 of this Agreement would cause irreparable harm to the other party for which no adequate remedy at law exists, and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Sections 1, 7, 9 or 10. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorney’s fees incurred because of any such legal action.
User understands and agrees that the operation and availability of the systems used to access and interact with the Software, including the networks and the Internet, or to transmit information, whether or not supplied by User or TEI, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the Software. TEI and the TEI Parties are not in any way responsible for any such interference with or prevention of User’s access and/or use of the Software.
13.Training and Support.
Unless User and TEI enter into a separate agreement, TEI will not provide any training or onsite support to User relating to the Software. TEI will provide User with:
(a)Commercially reasonable telephone and e-mail support for the Software during normal business hours; and
(b)Updates and enhancements for the Software, to the extent that TEI generally makes such updates and enhancements available to Users without a separate charge.
User agrees to defend, indemnify and hold TEI and each TEI Party harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonably attorneys’ fees and court costs) arising or resulting from User’s breach of any term of this Agreement or caused by acts or omissions performed by User or under User’s Password or any password issued by User to Licensed Users.
15.U.S. Government Users.
If User uses the Software on behalf of a U.S. government agency, this Agreement constitutes the entire agreement between the government agency and TEI and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) [48CFR] §§ 12.211 and 12.212 (for non-defense agencies) or Defense FAR Supplement (DFARS) [48 CFR] §§ 227.7201 and 227.7202 (for defense agencies). The Software is a commercial item which has been developed at private expense and not under a government contract. Pursuant to Federal Acquisition Regulation (FAR) [48 C.F.R.] 12.212 (for non-defense agencies) and Defense FAR Supplement (DFARS) [48 C.F.R.] 227.7202-1 and 227.7202-3 for defense agencies, the government’s rights in the Software are limited to those rights granted in this Agreement.
User’s right to use the Software shall be effective from the date User accepts this Agreement by clicking “I ACCEPT” below, and shall terminate when User ceases all access and use of the Software and provides TEI with notice of such termination or as otherwise provided in this Agreement.
TEI may terminate this Agreement immediately if User breaches a material term of this Agreement, including but not limited to User’s payment obligations, and fails to remedy that breach within five (5) business days after notice from TEI. Upon termination of this Agreement, all rights, including the License granted to User, under this Agreement will cease and User’s access to the Software may be disabled.
Upon termination of this Agreement, Sections 2, 3, 5, 6, 9, 11, 14, and 18 of the Agreement, along with all payment obligations under this Agreement, shall survive such termination.
17A. Notices. All questions, comments or notices concerning this Agreement shall be submitted to TEI by User via e-mail at: email@example.com.
All notices to be given under this Agreement to User shall be submitted by TEI via e-mail at the account User provided to TEI pursuant to Section 4 or to User upon accessing the Software.
17B. Acceptance. By clicking “I Accept” below and providing TEI with User’s e-mail address under Section 4, User agrees and consents to:
(i)Contract electronically with TEI for the Software in accordance with this Agreement;
(ii)Receipt of electronic legal notices regarding this Agreement to the e-mail account User provided under Section 4 or upon accessing the Software; and
(iii) Be bound by this Agreement.
17C. Agreement. In order to access, download and print this Agreement, User should click on the link for the PDF file version of this Agreement. Changes to the software requirements, if any, will be e-mailed to User.
17D. Changes. User may:
(i)Update its e-mail information by providing e-mail notice to TEI and/or
(ii)Withdraw such consent by providing written or email notice to TEI.
Please be aware that if User withdraws consent, such withdrawal of consent will not be effective until the date of receipt by TEI. The legal effect of this intervening time period is that User is still bound by the terms of this Agreement during such period. The legal consequence of withdrawing User’s consent shall not act to void or invalidate User’s actions prior to the effective date that shall remain subject to the terms of this Agreement. Upon withdrawing User’s consent, User will be responsible for all incurred fees and charges payable under this Agreement.
18.A. Records and Audit. During the term for Software and for two (2) years after its expiration or termination, User will maintain accurate records of User’s use of the Software sufficient to show compliance with the terms of this Agreement. During this period, TEI will have the right to audit User use of the Software, either directly or through a third party auditor, to confirm compliance with the terms of this Agreement. The audit is subject to reasonable notice by TEI to User and will not unreasonably interfere with User business activities. TEI will conduct any audit only during normal business hours. User will reasonably cooperate with TEI and any third party auditor and will, without prejudice to other rights of TEI, address any non-compliance identified by the audit by promptly paying any additional fees. User will promptly reimburse TEI for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software fees payable by User for the period audited, or that User has materially failed to maintain accurate records of Software use.
18C. Force Majeure. TEI will not be responsible for any failure to perform due to causes beyond its reasonable control, including acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
18D. Governing Law and General Provisions. This Agreement will be governed by the laws of the State of Florida, excluding the application of its rules on conflicts of law. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms. The headings contained in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. TEI’s failure to exercise or enforce any right or power under this Agreement shall not constitute a waiver of such right or power.
18E. Third Party Beneficiaries. Nothing contained in this Agreement is intended to confer upon any person, other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect to TEI Parties, which shall be deemed third-party beneficiaries under this Agreement, but solely with respect to those terms that specifically reference an TEI Party or the TEI Parties.
18.F. Publicity. In conjunction with this Agreement and use of the Software, TEI may use User’s name and logo in advertising and other commercial purposes unless User expressly notifies TEI otherwise pursuant to Section 17.
18G. Entire Agreement. This Agreement is the complete and exclusive statement of the agreement between User and TEI, and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement.
To ACCEPT this Agreement, press “I Accept,” which will create a legal contract that will bind USER and TEI as soon as you press “I Accept.”
To DECLINE this Agreement, press “I Do Not Accept,” which will deny you access and use of the Software.