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<br />Client a A
<br />This Client Agreement (the "Agreement"), effected as of the date noted in the attached Schedule A (the "Effective Date"), is by and between TargetSolutions
<br />Learning, LLC. ("TSL"), a Delaware limited liability company, and the undersigned client ("Client"), and governs the purchase and ongoing use of the services
<br />described in this Agreement (the "Services").
<br />1. Service. TSL shall provide the following
<br />services:
<br />1.1. Access. TSL will provide Client a non-
<br />exclusive, non -transferable, revocable, limited
<br />license to remotely access and use the Services
<br />hereunder and, unless prohibited by law, will
<br />provide access to any person designated by Client
<br />("Users').
<br />1.2. Av Il ilit . TSL shall use commercially
<br />reasonable efforts to display its content and
<br />coursework for access and use by Client's Users
<br />twenty-four (24) hours a day, seven (7) days a
<br />week, subject to scheduled downtime for routine
<br />maintenance, emergency maintenance, system
<br />outages and other outages beyond TSL's control.
<br />1,3. Help ales TSL will assist Users as needed
<br />on issues relating to usage via e-mail, and a toll
<br />free Help Desk five (5) days per week at scheduled
<br />hours.
<br />2. Client' 0blf a i n •.
<br />2.1. Compliance. Client shall be responsible for
<br />Users' compliance with this Agreement, and use
<br />commercially reasonable efforts to prevent
<br />unauthorized access to or use of the Services.
<br />2.2. Identify Users, client shall (i) provide a listing
<br />of its designated/enrolled Users; (ii) cause each of
<br />its Users to complete a profile; (iii) maintain user
<br />database by adding and removing Users as
<br />appropriate.
<br />2.3r Future Emagjignality,.Client agrees that its
<br />purchases hereunder are neither contingent on the
<br />delivery of any future functionality or features nor
<br />dependent on any public comments regarding
<br />future functionality or features,
<br />3. Fees and PaNMontS.
<br />31. Fees. Client will pay for the Services in
<br />accordance with the fee schedule in Schedule A
<br />attached to this Agreement. Fees listed in
<br />Schedule A shall be increased by 3% per year
<br />both during the term of this Agreement, as well as
<br />for any renewal terms,
<br />3.2. Payments. All fees due under this Agreement
<br />must be paid in United States dollars. Such
<br />charges will be made in advance, according to the
<br />frequency stated in Schedule A. TSL will invoice
<br />in advance, and such invoices are due net 30 days
<br />from the invoice date, All fees collected under this
<br />Agreement are fully earned when due and
<br />nonrefundable when paid.
<br />3.3. us2enji n of S&vjce for Overdue Payments
<br />Any fees unpaid for more than ten (10) days past
<br />the due date shall bear interest at 1.5% per month.
<br />With fifteen (15) days prior written notice. TSL
<br />shall have the right, in addition to all other rights
<br />and remedies to which TSL may be entitled, to
<br />suspend Client's Users' access to the Services
<br />until all overdue payments are paid in full,
<br />4. Int lie ual Pro gq Ri hts. 4.1, Client
<br />acknowledges that TSL alone (and its licensors,
<br />where applicable) shall own all rights, title and
<br />interest in and to TSL's software, website or
<br />technology, the course content, and the Services
<br />provided by TSL, as well as any and all
<br />suggestions, ideas, enhancement requests,
<br />feedback, recommendations or other information
<br />provided by Client, and this Agreement does not
<br />convey to Client any rights of ownership to the
<br />same. The TSL name and logo are trademarks
<br />of TSL, and no right or license is granted to Client
<br />to use them.
<br />4.2. Except as otherwise agreed in writing or to
<br />the extent necessary for Client to use the
<br />Services in accordance with this Agreement,
<br />Client shall not: (i) copy the course content in
<br />whole or in part; (ii) display, reproduce, create
<br />derivative works from, transmit, sell, distribute,
<br />rent, lease, sublicense, transfer or in any way
<br />exploit the course content in whole or in part; (iii)
<br />embed the course content into other products;
<br />(iv) use any trademarks, service marks, domain
<br />names, logos, or other identifiers of TSL or any
<br />of its third party suppliers; or (v) reverse
<br />engineer, decompile, disassemble, or access the
<br />source code of any TSL software.
<br />4.3. Client hereby authorizes TSL to share any
<br />intellectual property owned by Client ("User
<br />Generated Content") that its Users upload to the
<br />Community Resources section of TSL's website
<br />with TSL's 3'" party customers and users that are
<br />unrelated to Client ("Other TSL Customers");
<br />provided that TSL must provide notice to Client's
<br />users during the upload process that such User
<br />Generated Content will be shared with such
<br />Other TSL Customers,
<br />5. Term.
<br />The term of this Agreement shall commence on
<br />the Effective Date, and will remain in full force
<br />and effect for the term indicated in Schedule A
<br />('Term"). Upon expiration of the Initial Term, this
<br />agreement shall automatically renew for
<br />successive one (1) year periods (each, a
<br />"Renewal Term"), unless notice is given by either
<br />party of its intent to terminate the Agreement, at
<br />least sixty (60) days prior to the scheduled
<br />termination date. Upon expiration of the Initial or
<br />any Renewal Term, access to the Services may
<br />remain active for thirty (30) days solely for
<br />purpose of Company's record keeping (the
<br />"Expiration Period"). Any access to or usage of
<br />the Services following the Expiration Period shall
<br />be deemed Client's renewal of the Agreement
<br />under the same terms and conditions..
<br />6. Mutual Warranties and Disclaimer.
<br />6.1. Mutual Representalions & Warganties,
<br />Each party represents and warrants that it has
<br />full authority to enter into this Agreement and to
<br />fully perform its obligations hereunder.
<br />6.2. Disclaimer. EXCEPT AS EXPRESSLY
<br />PROVIDED HEREIN, NEITHER PARTY MAKES
<br />ANY WARRANTIES OF ANY KIND, WHETHER
<br />EXPRESS, IMPLIED, STATUTORY OR
<br />OTHERWISE, INCLUDING ANY
<br />WARRANTIES OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE, TO
<br />THE MAXIMUM EXTENT PERMITTED BY
<br />APPLICABLE LAW.
<br />7. Miscellaneous.
<br />7.1. Limitation on Liability. Except as it relates to
<br />claims related to Section 4 or Section 7.2 of this
<br />Agreement, (a) in no event shall either party be
<br />liable to the other, whether in contract, warranty,
<br />tort (including negligence) or otherwise, for
<br />special, incidental, indirect or consequential
<br />damages (including lost profits) arising out of or
<br />in connection with this Agreement; and (b) the
<br />total liability of either party for any and all
<br />damages, including, without limitation, direct
<br />damages, shall not exceed the amount of the
<br />total fees due to, or already paid to, TSL for the
<br />preceding twelve (12) months.
<br />T2. Indemnllica0on. TSL shall indemnify and
<br />hold Client harmless from any and all claims,
<br />damages, losses and expenses, including but
<br />not limited to reasonable attorney fees, arising
<br />out of or resulting from any third party claim that
<br />the Services or any component thereof infringes
<br />or violates any intellectual property right of any
<br />person.
<br />7.3.. Assignment. Neither party may assign or
<br />delegate its rights or obligations pursuant to this
<br />Agreement without the prior written consent of
<br />the other, provided that such consent shall not be
<br />unreasonably withheld. Notwithstanding the
<br />foregoing, TSL may freely assign or transfer any
<br />or all of its rights without Client consent to an
<br />affiliate, or in connection with a merger,
<br />acquisition, corporate reorganization, or sale of
<br />all or substantially all of its assets.
<br />7.4 EgjC Maleure, TSL shall have no liability
<br />for any failure or delay in performing any of its
<br />obligations pursuant to this Agreement due to, or
<br />arising out of, any act not within its control,
<br />including, without limitation, acts of God, strikes,
<br />lockouts, war, riots, lightning, fire, storm, flood,
<br />explosion, interruption or delay in power supply,
<br />computer virus, governmental laws or
<br />regulations.
<br />7.5. Waiver.;, No waiver, amendment or
<br />modification of this Agreement shall be effective
<br />unless in writing and signed by the parties.
<br />7.6. everabilily• If any provision of this
<br />Agreement is found to be contrary to law by a
<br />court of competent jurisdiction, such provision
<br />shall be of no force or effect; but the remainder
<br />of this Agreement shall continue in full force and
<br />effect.
<br />7.7. Entire A reement. This Agreement and its
<br />exhibits represent the entire understanding and
<br />agreement between TSL and Client, and
<br />supersedes all other negotiations, proposals,
<br />understandings and representations (written or
<br />oral) made by and between TSL and Client,
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