Table of Contents:
COMPUTER SOFTWARE LICENSE AGREEMENT
This computer software license agreement ("Agreement") is entered into as of the date subscribed below, by and between Easler Education LLC, a Florida corporation doing business as WorkTraining.com ("Licensor") with its principal place of business at 508 N Harbor City Blvd, Melbourne, Florida 32935, and you or your company, referred to as "Licensee" with your place of business and mailing address as indicated on your user profile as may be amended from time to time by you.
A. Licensor develops and markets computer software applications for Learning Management Systems and workforce training courses, including online portals known as EaslerLMS (the "Software”); and
B. Licensee desires to acquire a license to use and reproduce the Software for training purposes for employees of Licensee (the "Intended Use") and Licensor desires to grant Licensee the license.
THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
“Course Content” means any course materials, content, videos, presentation slides, files, quizzes, titles, descriptions, objectives, or other content available by and through EaslerLMS and the Software as updated from time to time at the sole discretion of Licensor.
"Licensee" means you or your entity and includes any employee, consultant, or contractor of Licensee, provide that the employee, consultant, or consultant is using the Software in the performance of his or her duties as an employee, consultant, or contractor of Licensee.
1.2 License Fee
"License Fee" means the fee to be paid by Licensee to Licensor as consideration for the license granted under this Agreement and the right to use the Software. License Fee is set forth in our Subscription Plans found here: https://worktraining.com/elearning-platform as of the date of this Agreement, and attached to this Agreement and incorporated by this reference.
"Licensor" means Easler Education LLC, a Florida Limited Liability Company.
"Software" means the computer program or programs marketed and sold as EaslerLMS, in object code form only. Software includes any updates, modification, bug fixes, upgrades, enhancements, or other modifications. It does not include any version of the Software that constitutes a separate product because of differences in function or features.
2. Grant of License
Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a nonexclusive, nontransferable license in the Software, to use and reproduce the Software exclusively for the Intended Use.
2.2 License Restrictions
Except as specifically granted in this Agreement, Licensor owns and retains all right, title, and interest in the Software, documentation, and any and all related materials. This Agreement does not transfer ownership rights of any description in the Software, documentation, or any related materials to Licensee or any third party. Licensee shall reproduce, install, and render the Software operational only on the EaslerLMS portal for Licensee. Licensee shall not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software, Course Content, or other assets hosted through EaslerLMS. Licensee shall not distribute the Software to any persons or entities other than Licensee's employees, consultants, or contractors. Licensee may not sell the Software to any person or make any other commercial use of the software. Licensee shall retain all copyright and trademark notices on the Software and Course Content and shall take other necessary steps to protect Licensor's intellectual property rights. Licensee shall not retail Course Content unless Licensee uses one credit per one individual enrollment in any given Course. Course Content may only be used for its own employees and customers when credits are paid for and used and may not be used to conduct or host in-person, classroom, or webinar-style training.
3. License Fees
3.1 License Fees
In consideration for the License granted to Licensee under this Agreement the Licensee shall pay Licensor the License Fee, as set forth in our Subscription Plans found here: https://worktraining.com/elearning-platform and incorporated by reference herein as of the date executed herein. The License Fee works as a subscription. Subscriptions provide Licensee access to our library of non-instructor-led training courses, also known as “Computer Based Training” or CBT courses.
Licensor’s subscriptions are credit-based. This means that every enrollment of one student in one course equates to one credit in the system. There are no minimum or maximum users in the system. Enrollments are only limited by the number of credits in Licensee’s credit bank.
Licensee’s credit bank is where its credits are deposited when Licensee subscribes. There are three total tiers of subscriptions: Growing Business, Established Business, and Enterprise. Each tier allots a specified number of credits to Licensee’s credit bank. Unused credits never expire for as long as Licensee maintains its subscription tier.
Licensee may upgrade, downgrade, or cancel at any time. If Licensee upgrades, its credits roll over into its new subscription credit bank. If Licensee downgrades or cancels before the subscription term ends, Licensee only pays for what it has used.
If Licensee expends all of its credits under the plan, but still needs to enroll additional learners, Licensee may:
Remain in Licensee’s “tier” and pay for the additional credits it needs based on its discounted “a la carte” rate per credit; or
Upgrade to the next tier. If Licensee upgrades to the next tier, it must first pay the remaining payments due under the existing contract term and commence a new term for twelve months thereafter.
For example, if Licensee expects only to need the lowest tier, but ends up using all of its credits in the first six months on the twelve-month term, then it may simply pay the remaining, unpaid six months out and upgrade to the next tier with a new set of credits under the credit bank and a new twelve-month term. Alternatively, if Licensee is in the eleventh month of the twelve-month contract, and uses all remaining credits in the credit bank, it may prefer to purchase the additional credits needed at the a la carte price for that tier rather than committing to upgrading to the next tier.
All amounts not paid within thirty (30) days of the date shown on the License Fee Schedule shall bear interest at the lesser of 18% per annuum, accruing monthly, or the highest amount allowed by law.
In addition to other amounts payable under this Agreement, Licensee shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Licensee's use of the Software or the payment of the License Fee to Licensor, other than taxes assessed against Licensor's net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Licensee or Licensee shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Licensor is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Licensor from Licensee pursuant to this Agreement, Licensee shall promptly reimburse Licensor any such amounts.
4. Licensor and Licensee Obligations
Upon execution of this Agreement, Licensor shall deliver the Software to Licensee in a format appropriate for the Authorized Platform at the Authorized Site together with the Documentation.
4.2 Compliance with Terms
5. Term and Termination
This Agreement, and the license granted under this Agreement, becomes effective on the date set forth in Section 10.11, below. Unless sooner terminated as set forth in Sections 5.2 and 5.3, below, the Agreement shall continue in effect for twelve (12) months or until the expiration of Licensor's rights in the Software.
5.2 Termination for Convenience
Either party may terminate the Agreement at any time and from time to time on thirty (30) days' prior written notice to the other party. On official termination date, Licensee will lose all course content, data, progress, users, and completion data. Licensee agrees that Licensor shall not be liable for any losses as a result of termination, whether for convenience or for cause.
5.3 Termination for Cause
Either party, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement as follows:
(a) By Licensor, upon seven (7) calendar days' written notice, if Licensee fails to pay the amounts due to Licensor pursuant to this Agreement;
(b) By either party for any material breach of this Agreement, other than failure to make payments under Section 3, that is not cured within thirty (30) days of receipt by the party in default of a notice specifying the breach and requiring its cure; or
(c) By either party, immediately upon written notice, if (1) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy, (2) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within thirty (30) days, or (3) the other party is adjudged bankrupt.
Licensee agrees that Licensor shall not be liable for any losses as a result of termination, whether for convenience or for cause.
5.4 Rights on Termination
Licensor has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of Software, documentation, or Course Content. On termination, (a) all rights granted to Licensee under this Agreement cease and Licensee will promptly cease all use and reproduction of the Software, documentation, and Course Content, and (b) Licensee will promptly return all copies of the Software to Licensor or destroy all of Licensee's copies of the Software and so certify to Licensor in writing within fourteen (14) days of termination. Sections 2.2, 6, 7, and 8 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.
6. Warranties, Disclaimer and Limitations
Licensor hereby warrants to Licensee that (a) Licensor is the owner of the Software and the Documentation or has the right to grant to Licensee the license to use the Software and Documentation in the manner and for the purposes set forth in this Agreement without violating any rights of a third party, provided that this warranty does not cover defects due to Licensee's misuse of the Software media or an accident subsequent to delivery to Licensee.
THE WARRANTIES SET FORTH IN SECTION 6.1, ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
6.3 Remedies on Breach of Warranty
In the event of any breach of the warranty set forth in Section 6.1, Licensee's exclusive remedy shall be for Licensor to promptly replace defective Software media; if Licensor is unable to replace the media within thirty (30) days of notification by Licensee of a defect, Licensee's sole remedy is to terminate this Agreement, at which time Licensor will refund license or other fees paid by Licensee pursuant to this Agreement on a pro rata basis starting from the expiration of the thirty (30) days’ notice contemplated in this Section.
6.4 Limitation of Liability
LICENSOR IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT.
6.5 Limitations Period
No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either party against the other more than ninety (90) days after the action accrues.
7.1 Infringement Indemnity
Licensor indemnifies, defends, and holds Licensee harmless from and against any claims, actions, or demands alleging that the Software infringes any patent, copyright, or other intellectual property right of a third party. If use of the Software is permanently enjoined for any reason, Licensor, at Licensor's option, and in its sole discretion, may (a) modify the Software so as to avoid infringement; (b) procure the right for Licensee to continue to use and reproduce the Software and Documentation; or (c) terminate this Agreement and refund to Licensee all license fees paid Licensor. Licensor shall have no obligation under this Section 7.1 for or with respect to claims, actions, or demands alleging infringement that arise as a result of (a) the combination of noninfringing items supplied by Licensor with any items not supplied by Licensor; (b) modification of the Software or Documentation by Licensee or by Licensor in compliance with Licensee's designs, specifications, or instructions; (c) the direct or contributory infringement of any process patent by Licensee through the use of the Software; and (d) continued allegedly infringing activity by Licensee after Licensee has been notified of the possible infringement.
7.2 Other Indemnity
Licensee is responsible and indemnifies and holds Licensor harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Licensee's use or reproduction of the Software and Course Content pursuant to this Agreement.
7.3 Condition to Indemnification
Should any claim subject to indemnity be made against Licensor or Licensee, the party against whom the claim is made agrees to provide the other party with prompt written notice of the claim. Licensor will control the defense and settlement of any claim under Section 7.1 and Licensee will control the defense and settlement of any claim under Section 7.2. The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise.
Licensee acknowledges that the Software and Course Content, and all information relating to the business and operations of the Licensor that Licensee learns or has learned during or prior to the term of this Agreement, may be the valuable, confidential, and proprietary information of the Licensor. During the period this Agreement is in effect, and at all times afterwards, Licensee, and its employees, contractors, consultants, and agents, will (a) safeguard the confidential information with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of this information; (c) not use the information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of Licensor. In the event that Licensor shall receive any confidential and proprietary information of Licensee during or prior to the term of this Agreement, Licensor, and its employees, contractors, consultants, and agents shall have the same obligation to protect such information as apply to the Licensee as provided in the previous sentence.
8.2 Limitations on Confidentiality Restrictions
8.3 Injunctive Relief for Breach
Licensor and Licensee acknowledge that any breach of Section 8.1 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that the disclosing party may have at law or in equity.
9. Export Controls and Restricted Rights
9.1 Export Controls
The Software, Course Content, and all underlying information or technology may not be exported or re-exported into any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Licensee shall not export the Software or Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and regulations. Licensee represents and warrants that it is not a national or resident of, or located in or under the control of, any country subject to such export controls.
9.2 Restricted Rights
The Software and Course Content are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (d) of the Commercial Computer Software - Licensing at NASA FAR supplement 16-52.227-86, or their equivalent, as applicable.
10.1 Assignment & Authority
Licensee may not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this Agreement without Licensor's prior written consent, which will not be unreasonably withheld. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement.
Licensee and any agent signing on behalf of Licensee hereby acknowledge and represent that the individual signing on behalf of Licensee has all requisite power and authority to bind the Licensee to each term within the contract. If a court of competent jurisdiction finds that the agent who executes this Agreement on behalf of the Licensee did not have the requisite authority to do so, the individual signing this agreement shall be held personally liable for the obligations hereunder.
10.2 Entire Agreement
This Agreement, along with the Exhibits attached and referenced in this Agreement, constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter contained in this Agreement.
This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand-delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service and addressed as follows:
To Licensor: 508 N Harbor City Blvd, Melbourne, Florida 32935
Attn: James T. White
To Licensee: To the mailing address or email address on user’s profile
Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except disclosure may be made as is reasonably necessary to the disclosing party's bankers, attorneys, or accountants or except as may be required by law.
10.6 Independent Contractor
Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither party shall have the authority to enter into any contracts on behalf of the other party.
10.7 Governing Law and Jurisdiction
The parties hereby agree and acknowledge that, notwithstanding any provision to the contrary in this Agreement, that the jurisdiction, venue, and the law governing the interpretation and performance of the Agreement shall be in the State of Florida and in a federal or state court in Orange County, Florida, without regard to any conflicts of law analysis, and nothing herein shall be construed to the contrary.
In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, the provision will be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
10.9 Attorney Fees
In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney fees and costs.
10.10 Effective Date
The effective date of this Agreement shall be the date user accepts these terms by electronic acceptance.