These Terms and Conditions apply to the access and use of the NHGO® NOW Short Segment Video Lesson Library (“Licensed Materials”) by all end users (“Customer”). Customer acknowledges that by accepting, accessing or using the Licensed Materials, it agrees to be bound by these Terms and Conditions, and, further, that these Terms and Conditions are incorporated into any proposal or other document used in connection with the sale and purchase of the Licensed Materials (each an “Ordering Document” and collectively “Ordering Documents”).
1. Grant of License & Term. New Horizons Computer Learning Centers (“Company”) grants Customer a limited, non-exclusive, non-transferable, revocable license (“License”) to access and use the Licensed Materials for the time period (“Term”) set forth in the applicable Ordering Document(s) for Customer’s internal organizational training purposes only. For purposes of these Terms and Conditions, “User” means an individual designated by Customer to use the Licensed Materials and for which Customer has paid the applicable fee.
2. Fees and Payments. As consideration for Company’s grant of the License, Customer shall pay all fees (“Fees”) set forth in the applicable Ordering Document. Initial payment of Fees be a pre-condition to Company’s grant of access and use of the Licensed Material. All Fees owed by Customer are exclusive of any sales, use, VAT, excise, withholding or other taxes applicable to the delivery of the Licensed Material. Except as expressly set forth herein, all fees are non-refundable. Failure of Customer to make any payments to Company as set forth in the Ordering Document(s) shall entitle Company to disable and/or suspend Customer’s use of the Licensed Materials until such payment is made.
3. Customer’s Obligations.
3.1 Customer shall not (and shall not permit its Users to): (a) sell, rent, lease, lend, sublicense, resell, distribute, or otherwise transfer or provide access to the Licensed Materials, in whole or in part, to any person, firm, or entity except as expressly authorized herein, or access the Licensed Materials to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; (b) modify, adapt, alter or create derivative works from the Licensed Materials or to merge the Licensed Materials or any subpart thereof (including proprietary markings) with other services, products or software, or remove or modify any proprietary markings or restrictive legends in the Licensed Materials, except as provided in the Agreement; (c) use the Licensed Materials to: (1) store, transmit or create libelous, obscene, deceptive, defamatory, pornographic, racist, sexual, hateful, unlawful, tortious or otherwise objectionable materials, or (2) harm or impersonate any person or violate the rights of any third-party; (d) interfere with or disrupt the integrity or performance of the Licensed Materials; (e) attempt to gain unauthorized access to the Licensed Materials or its related systems or networks; or (f) introduce viruses, Trojan horses, worms, spyware, or other such malicious code into the Licensed Materials.
3.2 Customer: (a) is solely responsible for any content provided by Customer or the Users with respect to the use of the Licensed Materials pursuant to the Ordering Document(s) and all activities arising from its Users, and (b) must keep all passwords related to the Licensed Materials (“Passwords”) secure and confidential, and notify Company promptly of any known or suspected unauthorized access to the Licensed Materials. Customer shall be responsible for any unauthorized use of any Passwords.
3.3 Customer is required to manage and secure the machine(s)/platform(s) on which the Licensed Materials will operate.
3.4 Customer shall provide the necessary environment and connections for its use of the Licensed Materials. Customer is solely responsible for any dangerous or hazardous conditions that may adversely affect the use of the Licensed Materials.
3.5 Customer shall comply with all applicable laws in performing its activities and obligations in connection with its use of the Licensed Materials.
4. Company’s Obligations. Company will provide the Licensed Materials for Customer’s use in accordance with the terms of the Ordering Document(s).
5. Ownership and Permitted Use.
5.1 At all times, the Licensed Materials shall remain the sole and exclusive property of Company, and Company owns all rights, title, and interests, including all intellectual property rights thereto and in all modifications, adaptations, enhancements and derivative works thereof whether made by Company, Customer or otherwise. Except as expressly permitted hereunder, Customer shall not translate, reverse engineer, decompile, disassemble, or modify or duplicate the Licensed Materials or portions thereof, or allow any third party to do any of the foregoing. Upon termination or expiration of this Agreement for any reason, Customer will cease, and will ensure the Users cease, all use of the Licensed Materials. Company reserves all rights in the Licensed Materials not expressly granted. Customer agrees that no proprietary materials created in connection with this Agreement are “works made for hire” as that term is used in connection with the U.S. Copyright Act. Customer remains fully liable to Company for all breaches of this Agreement by its Users and any other activity of its Users with respect to the Licensed Materials and the Agreement.
5.2 Usernames and Passwords may not be shared. Customer shall be solely responsible for any unauthorized use of the Licensed Materials, usernames and Passwords by any Users or third parties. Customer shall immediately report to Company any actual or suspected misuse of the Licensed Materials or any usernames or Passwords to Company.
5.3 As between the parties, Company owns the aggregated and statistical data derived from Customer’s use of the Licensed Materials (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Company from utilizing the Aggregated Data, provided that use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data provided with respect to the Licensed Materials.
6. Modifications to Licensed Materials. Company reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Licensed Materials or any service to which it connects, with or without notice and without liability to Customer. Customer agrees that Company may update, upgrade, replace, remove or add (collectively, “update”) additional features to the Licensed Materials that Company deems reasonable, beneficial to Customer, and/or reasonably necessary so long as such updates do not result in a material degradation of the Licensed Materials.
7. Disclaimer of Warranties.
7.1 Company will not be responsible for damage to the Licensed Materials resulting from any (i) alteration or modification of the Licensed Materials in any manner, or (ii) unauthorized use or abuse of the Licensed Materials.
7.2 THE LICENSED MATERIALS ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE LICENSED MATERIALS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
8. Limitation of Liability.
8.1 company’s aggregate liability for all claims, losses, liabilities or damages in connection with this Agreement, whether as a result of breach of contract, tort (including negligence) or otherwise, regardless of the theory of liability asserted, is limited to no more than the total amount of fees, IF ANY, paid TO COMPANY for the Licensed Materials in the THREE (3) months prior to the claim giving rise to the liability under this Agreement. COMPANY shall have no liability arising from or relating to any third party software, information or materials supplied under this Agreement. THIS LIMITATION SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
8.2 IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR FAULT OF COMPANY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY.
9. Indemnity. Customer shall indemnify defend and hold harmless, at its sole expense, any claim, demand, or suit (“Claim”) arising out of Customer’s use of the Licensed Materials and/or breach of the Terms and Conditions; and shall indemnify and hold Company harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorney’s fees) incurred by Company in association with any such Claim.
10. Confidential Information.
10.1 During the Term of the License, each party may have access to information considered confidential by the other. This information may include, but is not limited to, proprietary materials, technology, know-how, procedures, processes, protocols, specifications, usage metrics, strategic plans, designs, systems, software object code and source code, documentation, sales and marketing plans, results of testing, customer information, financial information, product information, proposed business arrangements, methods of operation and compilations of data (“Confidential Information”). All Licensed Materials is the Confidential Information of Company.
10.2 Each party shall use the other’s Confidential Information only for the purposes of the License. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party's Confidential Information. Neither party shall export, disseminate or otherwise transfer, in writing, orally and/or electronically, the other party’s Confidential Information outside of the United States.
10.3 The Parties are permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties (“Recipients”) on a need to know basis only for the purposes of the License, provided that such Recipients have contractual or legal confidentiality obligations to that party no less stringent than those contained herein. Each party shall be and remain fully liable and responsible for its Recipients’ unauthorized disclosure or use of the other party’s Confidential Information.
10.4 Each party is permitted to disclose the other party’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that it gives the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its Confidential Information.
10.5 The confidentiality provisions of this License do not apply to information that: (i) was in its possession, as evidenced by written records, prior to receipt of disclosure hereunder; (ii) is or becomes generally available or known to the public through no act or omission of the receiving party; (iii) was received lawfully from a third party through no breach of any obligation of confidentiality owed to the disclosing party; or (iv) was created by a party independently of its access to or use of the other party’s Confidential Information.
10.6 Upon termination of this License, each party shall return the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s benefit. The provisions of this Section shall survive termination of this License for so long as the Confidential Information remains confidential.
11. Non-Solicitation. Customer agrees that without expressed written consent, at all times during the Term and for twelve (12) months after termination, Customer will not, directly or indirectly, whether individually or as an officer, director, employee, consultant, partner, stockholder, individual proprietor, joint venturer, investor, lender, consultant or in any other capacity whatsoever: solicit, divert hire, retain (including as a consultant) or encourage to leave the employment or contract of Company, or hire or retain (including as a consultant) any former employee of Company who has left the employment or contract of Company within twelve (12) months prior to such hiring or retention. Customer agrees that it would be difficult to calculate the loss suffered by Company as a result of a violation of this non-solicitation provision, and agrees to pay, as liquidated damages and not as a penalty, the product of six (6) times the monthly average salary or wages paid to the employee for the twelve (12) month period immediately preceding termination of employment with Company.
12. Default and Termination. The License, and Customer’s possession and use of the Licensed Materials, shall automatically terminate upon the expiration of the Term. In addition, either party shall have the right to terminate the License upon written notice to the other party if the other party breaches any terms of the License and does not cure such breach within seven (7) days following receipt of written notice thereof. In addition, Company may terminate this License immediately upon written notice for a breach by Customer of Sections 2, 3, 5 and 10 hereunder.
13. Return or Deletion of Licensed Materials. Upon any non-renewal or termination of the License, Customer shall immediately deliver the Licensed Materials to Company, or delete all Licensed Materials from its systems and certify such destruction to Company by an officer of Customer.
14. Assignment. Customer may not be assign this License, in whole or in part, to any third party without the prior written consent of Company. Any such attempted assignment shall be void ab initio. Company may freely assign this License to any affiliate or third party.
15. Governing Law and Jurisdiction. This License shall be governed and construed in accordance with the laws of the State of Michigan without reference to its conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods. Each party consents to the exclusive jurisdiction of the federal and state courts of the State of Michigan with respect to any action arising under or related to this License, and waives any objection to forum or venue with respect to actions brought in such courts.
16. Notices. All notices under this License must be in writing and sent either by hand delivery; certified mail, return receipt requested; overnight courier; email; or by facsimile (with a confirming copy by certified mail or overnight courier) and will be effective when received by such party, or refused by such party, at the address and to the contact designated in the Ordering Document(s).
17. Force Majeure. Company shall not be held responsible for any delay, damages or failure of performance to the extent such delay, damages or failure is caused in whole or in part by fire, explosion, power failures, strikes or other labor disputes, water, earthquake, acts of God, elements, war, civil disturbances, acts of civil or military authorities, acts of terrorism, inability to secure materials or transportation, facilities, failure of suppliers, fuel or energy shortages, acts or omissions, unauthorized use of the Licensed Materials, or any other causes beyond Company’s reasonable control, whether or not similar to the foregoing.
18.1 This License and the Ordering Document(s), including any exhibits attached and/or incorporated thereto, set forth the final, complete, and entire agreement between the parties with respect to its subject matter, and supersedes and replaces any prior or contemporaneous agreements, whether written or oral, regarding such subject matter.
18.2 This License may not be modified except pursuant to a written amendment signed by both parties.
18.3 No failure by Company to exercise any power, right, privilege or remedy under this License, and no delay on the party of Company in exercising any power, right, privilege or remedy under this License, shall operate as a waiver of such power, right, privilege or remedy. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party, and any such waiver shall only be applicable to the specific instance referenced in such writing.
18.4 The relationship between the parties hereto is that of independent contractors. No agency, partnership, joint venture, employment or franchise relationship between the parties is created by this License.
18.5 The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this License.
18.6 All payment obligations of Customer, and any provisions which by their terms contemplate continuing effectiveness, shall survive any termination or expiration of this License.
18.7 If any part of this License is held void or unenforceable, such part will be treated as severable, leaving valid the remainder of this License notwithstanding the part or parts found to be void or unenforceable.
18.8 Nothing in this License shall be deemed to create any right or benefit in any person not a party hereto.
18.9 Customer agrees that nothing in this License shall be deemed to prevent Company at any time from entering into any similar or other business relationship of any kind with any third party for any purpose.
18.10 By acceptance and use of this License, Customer hereby grants to Company a limited, non-exclusive, royalty free license to use and/or display Customer’s corporate name, trademarks and/or logos (the “Marks”) on Company’s web site and in Company’s sales and marketing collateral. Any of the Marks used and/or displayed by Company in connection with the foregoing shall be and remain Customer’s sole and exclusive property. Any and all rights and good will in any of the Marks used and/or displayed in connection with the foregoing shall inure to the benefit of Customer.