Content Licensing Agreement

Revised: 07/15/2014

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1. Definitions.

a)“Agreement” means these Terms and Conditions, the attached Purchase Schedule, and any properly executed amendments or addenda.

b)“Company” means Relias Learning, LLC.

c)“Customer” means the business entity named on the Ordering Document and receiving Subscription Services under this Agreement.

d)“Purchase Schedule” means any documents, regardless of actual name, which incorporates by reference the terms of this Agreement and describes order-specific information such as description of Courses ordered, fees, or other business terms. 

2. License.

a) License Grant.  Upon payment of the fee set forth in Section 6, Company hereby grants to Customer a non-exclusive, non-royalty bearing license to utilize the courses listed on the attached Purchase Schedule (“Courses”) on Customer’s owned or licensed Learning Management System (“LMS”), solely for the purpose of training its own employees (“Users”), for the Term unless sooner terminated as provided in this Agreement (“Course License”).  The Courses will be stored on Company servers and will be accessed by Customer solely for the purposes allowed under the Course License. Company reserves the right, upon notice to Customer, to add and/or substitute functionally equivalent Courses in the event of product unavailability, end-of-life, or other changes which make such substitution necessary. 

b) Grant Restrictions.  The Course License shall be subject to the following retained rights and restrictions:

i) Company shall have and retain all rights, title and interest in and to the Courses and shall retain the right to practice, use, license and disclose the Courses in its complete discretion along with any other technology Company develops.

ii) Neither Customer nor Customer’s affiliates, employees, agents or individuals or entities to whom Company discloses the Courses shall (a) reverse engineer, decompile or disassemble the Courses; (b) remove any copyright notices or other proprietary markings on the Courses; (c) modify the Courses or create derivative works based on the Courses; or (d) transfer the Courses or any rights or obligations under this Agreement to a third party. 

iii) Customer shall not have the right to enter into sublicensing agreements with respect to any of the rights, privileges and licenses granted hereunder.    

iv) Neither Customer nor Customer’s affiliates, employees, agents or any parties to whom disclosures are made shall receive or have any rights of ownership, inventorship, authorship, rights in patents or patent applications, copyrights, trademark and service mark rights, rights in trade secret and proprietary information, rights of attribution and integrity or other moral rights, or any other intellectual property rights of any type to the Courses.

v) Customer shall not activate and deactivate Users repeatedly as a method of keeping the number of Users within range of the Subscription Metrics stated in the Purchase Schedule. 

3. Subscription Metrics.  Customer understands and agrees that (i) all fees are based on the Subscription Metrics purchased and that (ii) unless expressly stated otherwise in the Purchase Schedule, the quantity(ies) of Subscription Metrics provided in the initial Purchase Schedule represent minimum amounts that Customer has committed to for the Term.  Additional Subscription Metrics must be purchased in units of ten (10) in the event actual use exceeds the licensed quantity, at Company’s then- current fees. Additional Subscription Metrics, if any, are prorated for the remainder of the then-current Term. There shall be no fee adjustments or refunds for any decreases in usage during the Term. Customer shall deliver a quarterly report to Company which shows how many Users are currently able to access the Courses, so that Company may confirm actual use. “Subscription Metrics” means the number of Users purchased by Customer, as defined on the Purchase Schedule. If Company reasonably determines, in its sole discretion, that the report provided by Customer is not accurate, Customer shall allow Company to access the LMS for the purpose of verifying the current User count. 

4. Term.   

a) This Agreement shall begin on the Effective Date. The Course License shall be effective as of the Subscription Start Date and shall continue for the period defined on the Purchase Schedule (“Initial Term”). Following the end of the Initial Term, the Course License shall automatically renew for the same length as the Initial Term, unless either party gives written notice at least sixty (60) days prior to the end of the Initial Term, or any renewal term, of its intent to terminate the Course License (“Renewal Term”). The Initial Term and any Renewal Term shall be referred to collectively as the “Term.” 

b) Termination.  Either party may terminate the Agreement, including all Purchase Schedules, executed thereunder immediately upon written notice (i) in the event that the other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such breach, except for breach of Section 6 which shall have a ten (10) day cure period; or (ii) in the event of institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against the other party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by either party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of either party not involving the United States Bankruptcy Code.

c) Suspension. Company may suspend the Course License upon ten (10) days prior written notice in the event of Customer’s failure to timely pay to Company the compensation set forth in Section 6, unless Customer cures such breach within that period of time.

d) Effect of Termination.  If this Agreement is terminated by either party, the Course License shall terminate as of such termination date.  Upon termination of this Agreement, Customer shall immediately i) discontinue use of the Courses, ii) return to Company all copies of the Courses and any materials related to the Courses, iii) remove from the LMS any and all materials directly or indirectly related to the Courses, including the Courses, and iv) have an officer of Customer certify in writing to Company that such actions have occurred.  Customer may retain the Courses, or documents related to the Courses, as required for regulatory or accreditation purposes, but strictly for archive purposes and provided that an officer of the Customer certifies in writing to Company that no individual or entity under Customer’s control or direction is able to access or otherwise utilize the Courses as of termination or in the future. The termination of this Agreement shall not relieve the parties of any payment obligation accruing prior to such termination.  The provisions of this Section 5(d) along with the confidentiality restrictions set forth in Section 7 and the indemnification provisions set forth in Section 9 shall survive the termination of this Agreement.  Any early termination of this Agreement shall be without prejudice to the rights of either party against the other accrued or accruing under this Agreement prior to termination. 

5. Annual License Fee.  

a) Customer shall pay Company a license fee in accordance with the attached Purchase Schedule.  

b) Company may, after the first twelve (12) months of the initial term, and not more than once in a twelve (12) month period, modify the fees for the Courses upon sixty (60) days written notice. Unless otherwise specified in the Purchase Schedule, payment of all fees is due thirty (30) days after the invoice date. Interest accrues on past due balances at the lesser of 1½% per month or the highest rate allowed by law. Unless expressly provided otherwise, prices do not include taxes. Customer agrees to pay any federal, state or local sales, use, personal property, excise taxes or other taxes arising out of this Agreement.  

6. Confidentiality Restrictions.

a) “Confidential Information” includes all disclosures, information and materials, whether oral, written or otherwise, about Company (including, but not limited to, information learned by Customer from Company, its employees or agents, or through inspection of property owned or controlled by Company, including software and documents) which have already been or will be accessed by, furnished to or obtained by Company, including, without limitation: (i) information of an educational nature, including, but not limited to, the Courses; (ii) information of a technical nature, including, but not limited to, computer software, programs, source or object code, user manuals, documentation, designs, discoveries, drawings, formulas, inventions, know-how, labeling, methods, processes, proprietary information, specifications, techniques, testing data and trade secrets; and (iii) information related to the improvements and any and all future developments, including, but not limited to, future marketing or merchandising plans or ideas, new product ideas, and research and development.  Confidential Information does not include information (i) that is generally available to the trade or to the public through no fault or breach on the part of Customer; (ii) that subsequently becomes available to the trade or to the public through no fault or breach on the part of Customer, and then only after said later date; (iii) that Customer can demonstrate by written or other tangible evidence it rightfully possessed prior to disclosure to Customer by Company; (iv) that is independently developed by Company without the use of any Confidential Information; or (v) that Company obtains in good faith from a third party who has the independent right to transfer or disclose such information.

b) Use/Disclosure.  Neither Customer nor any of Customer’s directors, officers, agents, affiliates, employees, contract workers, consultants, lenders, advisors or representatives (collectively, “Representatives”), nor any party to whom the Customer discloses the Courses, shall disclose, publish, or disseminate the Confidential Information of Company to anyone, and Customer shall take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of the Confidential Information of Company. Customer shall receive the Confidential Information of Company only for the purposes set forth in this Agreement. Except in connection with such purposes, Customer shall not use the Confidential Information of Company for the benefit of any third party, or to the detriment of Company, without prior written approval of Company in each instance. In the event Customer is required by law to disclose any Confidential Information, Customer shall, to the extent permitted by law, notify Company and provide Company with the opportunity to seek a protective order or other legal protection before making such disclosure, and reasonably cooperate with Company’s efforts to obtain such protection. 

7. Equitable Relief.  Customer hereby acknowledges that unauthorized disclosure or use of Confidential Information would cause irreparable harm and significant injury to Company in an amount that may be difficult to ascertain. Accordingly, Customer agrees that Company will have the right to obtain immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.

8. Indemnity

a) Company shall indemnify and hold harmless Customer and its principals, officers, directors, agents, and employees (the “Customer Indemnified Parties”), and at Company’s option, either defend Customer Indemnified Parties or pay their attorney’s fees and court costs, from any loss, cost, damage, or expense incurred by Customer that is finally awarded by a court of law to any third party as a result of a claim alleging that the Courses infringe or misappropriate a U.S. patent, U.S. copyright, U.S. trademark or U.S. trade secret of a third party, solely provided such alleged infringement or misappropriation does not arise from: (i) a modification of the Courses as delivered to Customer, (ii) the combination of the Courses with any other process, hardware, software, data, or functionality; or, (iii) any use of the Courses by Customer or Users in a manner inconsistent with the documentation or instructions provided by Company or otherwise in breach of this Agreement. The indemnification made hereunder is solely provided upon the following conditions: iv) Company controls any settlement or any suit or claim indemnified hereunder and Company’s prior written approval is obtained prior to any settlement by Customer; v) Company is promptly informed of any third party claim indemnified hereunder; and, vi) Customer ceases any alleged infringing activity upon actual or constructive notice of any claim or allegation of infringement.

b) Customer shall indemnify, defend and hold harmless Company and its affiliates, and their respective current or future directors, officers, employees and agents and their respective successors, heirs and assigns (“Company Indemnified Parties”) against any and all Losses incurred by or imposed upon the Company Indemnified Parties or any one of them in connection with any actions, suits, claims demands or judgments arising out of the use, misuse or alteration of the Courses by Customer or any other individual or entity to whom disclosure was made by Customer; provided, however, that Customer shall not be responsible for third party claims of intellectual property infringement on the part of Company as provided in Section 9(a).

9. Warranty and Limitation of Liability. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL COURSES ARE PROVIDED ON AN ‘AS IS AS AVAILABLE’ BASIS. COMPANY, ITS LICENSORS, DATA CENTER AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SOFTWARE, DATABASE, COURSES, OR DELIVERABLES ARE ERROR- FREE, ACCURATE OR RELIABLE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED OR WILL COMPLY WITH ANY LAW, RULE OR REGULATION, (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND (iii) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY COMPANY, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE COURSES ARE NOT DESIGNED OR INTENDED TO MEET ALL OF ITS OR ITS USERS’  TRAINING AND EDUCATIONAL NEEDS OR REQUIREMENTS, INCLUDING TRAINING AND EDUCATION THAT IS REQUIRED UNDER APPLICABLE LAWS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE COURSES PROVIDED HEREUNDER TO ACHIEVE ITS INTENDED RESULTS. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL MODIFIED COURSES AND PROPRIETARY COURSES AND SHALL BE SOLELY LIABLE FOR ALL USE OF MODIFIED COURSES AND PROPRIETARY COURSES BY ITS USERS.

CUSTOMER ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR ANY USERS’ COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER FURTHER ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR RESULTS OBTAINED FROM THE USE OF THE COURSES, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COURSES ARE NOT INTENDED TO PROVIDE MEDICAL ADVICE, OPINIONS, DIAGNOSIS, OR A SUGGESTED COURSE OF TREATMENT. CUSTOMER FURTHER AGREES THAT THE SOLE AND EXCLUSIVE RESPONSIBILITY FOR ANY MEDICAL DECISIONS OR ACTIONS WITH RESPECT TO A PATIENT’S MEDICAL CARE AND FOR DETERMINING THE ACCURACY, COMPLETENESS OR APPROPRIATENESS OF ANY DIAGNOSTIC, CLINICAL OR MEDICAL INFORMATION RESIDES SOLELY WITH THE HEALTHCARE PROVIDER.    CUSTOMER ACCEPTS ALL LIABILITY FOR SUCH DIAGNOSIS OR TREATMENT. COMPANY SHALL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S OR ANY OF USERS’ USE OF THE COURSES, AND ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE OR WEB SITES THAT ARE ACCESSED VIA LINKS FROM WITHIN THE COURSES.

TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED UNDER THIS AGREEMENT) TO CUSTOMER AND USERS FOR ANY CLAIM BY CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT, WILL BE LIMITED TO THE FEES PAID FOR SUCH ITEMS THAT ARE THE SUBJECT MATTER OF THE CLAIM FOR THE PRIOR TWELVE (12) MONTHS. IN NO EVENT WILL EITHER PARTY, ITS LICENSORS AND SUPPLIERS BE LIABLE TO THE OTHER PARTY OR USERS OR OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NO CLAIM ARISING OUT OF THE AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN THE SHORTER OF ONE YEAR OR THE PERIOD ALLOWED BY LAW AFTER THE CAUSE OF ACTION HAS OCCURRED.

THIS SECTION 10 SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.

10. Assignment.  This Agreement will be binding on, and inure to the benefit of, the parties to this Agreement and their respective successors and permitted assigns. This Agreement may not be assigned, sublicensed or otherwise transferred, in whole or in part, by either party without the other party’s prior written consent, which consent shall not be unreasonably withheld, other than to an entity that acquires control over the assigning party’s business or assets, whether by merger, acquisition, or other business combination; provided, however, that Company shall have the right terminate this Agreement immediately upon written notice if the other entity which acquires control over Customer is a competitor of Company.

11. Notices.  Any notice required or permitted to be sent under this Agreement (except for invoices and notices related to payment of fees and price increases) shall be delivered by hand, by overnight courier, or by registered mail, return receipt requested, to the address of the parties first set forth in the signature page to this Agreement or to such other address of the parties designated in writing in accordance with this subsection.

12. Relationship.  This Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

13. Non-Solicitation.  During the term of this Agreement and for a period of one (1) year following its termination, neither party will solicit for employment directly or through other parties, without the other party’s written permission, any individual employed by the other party, provided however that the solicitation or hiring of individuals responding to general public marketing and recruiting advertisements and events shall not be a violation of this provision; only active, targeted solicitation is prohibited.

14. Invalidity.  If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

15. No Waiver.  No waiver or failure by either party to exercise any option, right or privilege under the terms of this Agreement on any occasion or occasions will be construed to be a waiver of the same on any other occasion or of any other option, right or privilege. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of the Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such party’s right to take subsequent action.

16. Entire Agreement. This Agreement, including the Purchase Order and other attachments incorporated by reference, constitutes the parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, proposals, conditions, representations, warranties, or other communication between the parties relating to its subject matter as well as any prior contractual agreements between the parties. No modification to the Agreement will be binding unless in writing and includes a signature by an authorized representative of each party. All pre-printed or standard terms of any of Customer’s purchase orders or other business processing documents shall have no effect.

17. Governing Law and Venue.  The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles of conflict of laws. Any dispute arising from or relating to the Agreement shall be litigated in the state or federal courts located in Wake County, North Carolina to whose exclusive jurisdiction the parties hereby consent.