Master License and Subscription Agreement

WHEREAS, Instructional Design Company (IDC) owns or has the right to license certain computer courseware and is willing to allow Licensee to use such computer courseware as hereinafter described.

Now, THEREFORE, in consideration of the mutual promises contained in this Agreement, IDC and Licensee agree as follows:

1. DEFINITIONS

1.1 An “Affiliate” shall mean any corporation which, directly or indirectly, controls or is controlled by or is under common control with Licensee. For this purpose, “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities or by contract or otherwise, but such corporation, company or other entity shall be deemed to be an Affiliate only as long as such ownership or control exists.

1.2 “Courseware” shall mean programmed instructional presentations, including, but not limited to, any quizzes, remedial feedback and downloadable documents created by IDC. IDC reserves the right (i) to develop and market new modules and add-on modules to the Courseware which perform substantially different functions in substantially different ways and which in IDC’s reasonable commercial judgment contain such added functionality that an additional fee for such modules is warranted; and (ii) to exclude such new and add-on modules from the Courseware.

1.3 “Licensee Material” shall mean any trademarks, courseware, audio files, video files, data, graphics or other materials or resources created by Licensor (IDC) and installed to either the IDC hosted LMS software system, or for transmission to the Licensee for installation on the licensee LMS software system, in order to provide any of the services under this Agreement together with any data on Licensee’s users access of the Courseware.

1.4 ”Licensed Documentation” shall mean the user manuals, training materials, guides, listings, specifications, and other materials available from IDC for use in conjunction with the Courseware.

1.5 “Error Corrections” shall mean corrections, modifications or revisions to the Courseware and any Licensed Documentation that corrects defects, errors, malfunctions or non-conformities therein, of which IDC learns from any source, so that the Courseware shall conform to the express warranties set forth in Section 7 of this Agreement. Except as provided in Section 9 below, Error Corrections will not mean that IDC is required to provide Licensee with updates or enhancements to the Courseware or Licensed Documentation for any reason.

1.6 “Subscription” shall mean that period specified in the Proposal during which Customer will have permission to use the Courseware for the fixed number of Users specified.

1.7 “Updates” shall mean any revisions, updates, upgrades, releases, or corrections of the Courseware, Licensed Documentation or any component thereof, made by IDC or its designee, which shall be made on a when and if available basis to Licensee by IDC under the terms and conditions of this Agreement.

1.8 “Users” shall mean individuals, authorized by Licensee and for which Licensee has purchased a subscription to utilize Courseware, who access any materials or products provided by IDC hereunder.

2. GRANT OF LICENSE

2.1 If the Licensee is hosting Courseware on its system, then IDC grants to Licensee a non-transferable, non-exclusive term license, which commences from the date of execution of this Agreement to use, perform, execute and copy (solely to the extent necessary to effect its rights under this Agreement) the Courseware and Licensed Documentation, subject to the usage limits acquired during a subscription term. IDC hosted Courseware is accessed on-line and its use is purchased as a Subscription. Courseware may not be accessed by more users than described in the Proposal. In the case of Subscriptions and licenses, this Agreement will automatically renew unless canceled in writing by Licensee at least thirty (30) days prior to the end of Subscription term renewal date. Renewal prices are subject to change. Renewal of services by Customer indicates agreement to any contract revisions and price changes. Renewal fees for the following Term will be automatically invoiced to Customer’s account.

2.2 Except as otherwise provided herein, the benefits and obligations of this Agreement shall extend to Affiliates of Licensee, as defined herein, provided that the Courseware is used in connection with the businesses of such Affiliates.

3. LICENSE FEE

3.1 In consideration for the License granted hereunder and for the other undertakings by IDC, Licensee shall pay the subscription license fees described in the Proposal to IDC. Except as otherwise specified herein or in the Proposal, fees are based on the services and Courseware for which a Subscription has been purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) User quantities purchased cannot be decreased during the relevant subscription term.

3.2 Payment terms are net thirty (30) days from the date of the invoice. If any invoiced amount is not received by IDC by the due date then, in addition to any all other rights that may be available, a late payment charge of 1.5% per month or the maximum rate permitted by law, whichever is less will be applied to the outstanding balance.

3.3. Suspension of Service. If any amount owing by Licensee under this or any other agreement for IDC services or content is overdue then IDC may, in addition to any other remedies which may be available, accelerate all unpaid subscription, license or services fees and all such obligations become immediately due and payable. In addition, IDC shall have the right to suspend all services under any agreements between the parties until all such amounts are paid in full.

3.4 Unless designated as a tax-exempt organization by the Internal Revenue Service with current and valid exemption certificate, Licensee shall pay all applicable Federal, state, and local use and sales taxes which may be levied in connection with this Agreement and Licensee’s use of the Courseware.

4. NOTICES

4.1 Licensee shall appoint and retain two or more Contract Administrators at all times. “Contract Administrator” means the individuals responsible for monitoring actively the obligations (including payment obligations) of Licensee.

4.2 Any notice or demand hereunder shall be in writing and shall be sent by registered or certified United States mail, postage prepaid, or sent by nationally recognized express courier service to the respective Contract Administrators at the addresses set forth below or to such other addresses as the parties may designate in writing and shall be effective upon receipt.

Instructional Design Company
PO Box 8613
Madeira Beach, FL 33738-8613
Attention: Shawntay Skjoldager

5. TRAINING/DOCUMENTATION/CUSTOMIZATION

5.1 IDC shall provide Licensee with remote training and installation services by IDC’s support personnel (as applicable) on a time and material basis.

5.2 IDC shall provide Licensee with the number of hours and billable rates as further described in the Proposal to coordinate the implementation and customization work, if any. This time will primarily include coordinating communication between all parties, including the resolution of potential customizations and implementing the content customization work. Licensee shall have access to customized work only during the subscription term.

6. TITLE TO MATERIALS

6.1 All right, title and interest in and to the Courseware, documentation and error corrections, including all the originals and all copies and the media on which the same are furnished to Licensee, are and shall remain with IDC. Licensee acknowledges that, except for the licenses granted hereunder, no right, title, or interest in or to the Courseware, documentation or error corrections is granted under this Agreement, and no such assertion shall be made by Licensee.

6.2 Licensee grants IDC and its Affiliates a worldwide, limited term license to host, copy, transmit and display Licensee Material as necessary to fulfill the obligations of this Agreement. Subject to the limited licenses granted herein, IDC shall acquire no right, title or interest in Licensee Material.

6.3 IDC will upon written request by Licensee made within 30 days after the effective date of termination or expiration of this Agreement or any renewal thereof, IDC will make trainee record data available to for export or download provided Licensee is not in breach of any term of this Agreement. After the aforesaid 30-day period, IDC shall have no obligation to maintain or provide trainee record data and shall accept no liability for its deletion. All trainee record data Material in IDC’s possession after said 30 day period shall be deleted.

7. WARRANTIES

7.1 IDC warrants that the Courseware will conform in all material respects to the published course outline(s) referenced in Exhibit “A” to this Agreement.

7.2 IDC warrants that the Courseware do not infringe any third party’s copyright or other property or intellectual property rights.

7.3 IDC takes ordinary and customary security measures in protecting customer information passing through software, web sites, e-mail, and the portions of non-public network within IDC’s control. IDC accepts no responsibility beyond ordinary and customary responsibilities.

7.4 During the Subscription term IDC will furnish to Licensee any and all reasonably necessary error corrections to the Courseware at no cost to Licensee promptly upon notification by Licensee (which Licensee agrees to implement) and, at IDC’s option, reasonable telephone support or on-site assistance, if reasonably required, to correct any deficiency(s). If the problem is solely due to Licensee’s modifications or alterations to the Courseware or failure to comply with the terms of this Section 7, then time and expenses associated with such on-site support shall be billed by IDC at its then current applicable rates, and paid by Licensee.

7.5 DISCLAIMER OF WARRANTY IN THE EVENT OF CODE MODIFICATIONS. In the event that Licensee modifies the Courseware in a manner that is not authorized, then, upon such unauthorized modification, IDC shall be released and discharged from all warranty obligations herein.

7.6 IDC Service Level Agreement for Hosted Content

Network Uptime
Network Uptime is the total time in a calendar month that the IDC online learning management system is available through the Internet to deliver online training, provided that the Client has established connectivity. IDC takes responsibility for website availability within its network, however, IDC cannot be held liable for upstream problems, outside of IDC’s network.

Network Outages & Unscheduled Downtime
Network Outages or Unscheduled downtime is any unplanned or unscheduled interruption in Service availability during which Client is unable to access the services as described in the section titled “Network Uptime” above. A Network Outage is defined as a period in which 100% packet loss to IDC website is experienced, which is determined to have been caused by a problem in IDC’s Network as confirmed by IDC. Downtime or outages are measured as the total length of time of the unplanned interruption in service availability in a calendar month.

Web Service Uptime
Web Service Uptime is the total time in a calendar month that an IDC Web Service is available through the Internet, provided that the Client has established connectivity. IDC Web Services will be available to clients free of outages for 99.5% of each calendar month, excluding scheduled downtime.

7.7 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, IDC MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY APPLICABLE OR CREATED BY OPERATION OF LAW, CUSTOM, TRADE USAGE OR COURSE OF DEALINGS. Further IDC will not be responsible for any damages that may be suffered by Licensee, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or due to errors or omissions of Licensee or due to causes beyond IDC’s direct control.

8. INDEMNIFICATIONS

8.1 IDC agrees to indemnify, and hold harmless Licensee from and against any action, claim, demand, loss, or expense involving a claim that the Courseware (if applicable) infringe any third-party rights in respect to trademark, patent, copyright. IDC shall conduct the defense of any such third party action arising as described herein and Licensee agrees to cooperate with IDC in the defense of any such claim. IDC shall have the right to select its counsel to control the defense of and, at its option, to settle any such suit, proceeding or claim.

8.2 If the use of the Courseware by Licensee is held to constitute an infringement and such use is enjoined temporarily or permanently, IDC shall, at IDC’s option and at IDC’s expense:

modify the Courseware so it becomes non-infringing without materially altering its capacity or performance; or
replace the Courseware with other courseware which is substantially equal in capacity and performance but is non-infringing; or
reimburse Licensee for the remaining pro-rated term license fee paid.
These provisions are limited to the Courseware (if applicable) provided to Licensee.

8.3 Licensee shall and does hereby agree to indemnify, defend, and hold harmless IDC from liability against any action, claim, demand, loss, or expense (including attorneys’ fees) related to a claim that Licensee’s modification of the Courseware, Source Code, Licensed Documentation or Error Corrections infringe any third-party rights in the United States respecting patent, copyright, or trade secret rights.

9. LICENSEE RESPONSIBILITIES

9.1 Licensee will:

be responsible for Users’ compliance with this Agreement,
be responsible for the accuracy, quality and legality of Licensee Materials,
use commercially reasonable efforts to prevent unauthorized access to or use of Courseware provided by IDC and to provide immediate written notice to IDC of any unauthorized use thereof,
use Courseware provided by IDC only in
accordance with this Agreement and applicable laws and government regulations.
9.2 Licensee will not:

make any Courseware available to anyone other than Users (this includes use beyond the number of total Subscriptions acquired)
b. sell, resell, license, sublicense, distribute, rent or lease any Courseware
c. attempt to reverse engineer, copy or imitate any element of the Courseware
d. utilize any Courseware or service provided hereunder for any malicious, libelous or illegal purpose.
9.3 If the Licensee is hosting Courseware locally on a SCORM LMS, then Licensee acknowledges that the Courseware and enabling software will auto disable upon the termination or expiration of the Subscription. Licensee further agrees to permanently remove and delete all copies of Courseware from production, test, and backup systems within 30 days of termination or expiration of any Subscription period and provide written confirmation of such removal signed by an authorized representative of Licensee. Licensee further grants IDC a right to audit the compliance with this section during normal working hours without advance notice.

10. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR TORT DAMAGES, INCLUDING WITHOUT LIMITATION, PUNITIVE DAMAGES, DAMAGES RESULTING FROM LOSS DUE TO DELAY, LOST PROFITS, BUSINESS OR GOODWILL, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF IDC FOR CLAIMS ARISING OUT OF THIS AGREEMENT OR THE DELIVERY OR USE OF THE COURSEWARE EXCEED THE FEES PAID TO IDC BY LICENSEE PURSUANT TO THE TERMS OF THIS AGREEMENT; SUCH LIMITATION SHALL APPLY WHETHER SUCH ACTION IS IN CONTRACT, TORT OR OTHERWISE.

11. CONFIDENTIALITY

11.1 Licensee acknowledges that the Courseware, Licensed Documentation and Error Corrections are confidential and proprietary property of the IDC, the development of which required the expenditure of considerable time and money by IDC. Licensee shall treat said property in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy, or disclose the same for any purpose that is not specifically authorized under this Agreement.

11.2 Licensee shall not permit any personnel of Licensee to remove any proprietary or other legend or restrictive notice contained or included in any material provided by IDC.

11.3 Licensee shall ensure that use of and access to the Courseware, Licensed Documentation and Error Corrections shall be limited to such personnel of Licensee, and of Licensee’s Affiliates, who have a need to know as required in the performance of their duties for Licensee or such Affiliate. Licensee may disclose the Courseware, Licensed Documentation and Error Corrections to contractors and/or outsourcers engaged by Licensee to provide technical support services in connection with the Courseware. Licensee shall ensure that such contractors and/or outsourcers understand the confidential and proprietary nature of the Courseware, Licensed Documentation and Error Corrections.

11.4 Licensee shall limit use of and access to the Courseware to such employees or contractors and/or outsourcers of Licensee who have a need to use said Courseware as required in the performance of their duties for Licensee.

11.5 Licensee agrees to use the same care and discretion to avoid disclosure, publication or dissemination of the Courseware, Licensed Documentation and Error Corrections as Licensee uses with similar property of its own which it does not desire to disclose, publish or disseminate, but at a minimum Licensee shall not use less than reasonable care and discretion.

11.6 Licensee recognizes and acknowledges that any use or disclosure of the Courseware, Licensed Documentation or Error Corrections by Licensee in a manner inconsistent with the provisions of this Agreement may cause IDC irreparable damage for which injunctive and equitable relief shall be available. Licensee consents to the entry of preliminary or permanent injunctive relief before any court of competent jurisdiction.

11.7 The provisions of this Section 11 will not apply to information which the receiving party can establish: (i) was already in the public domain at the time of disclosure or afterwards becomes part of the public domain or otherwise through no fault of the receiving party; or (ii) was in the receiving party’s possession before disclosure, whether under this Agreement or otherwise, by the disclosing party.

11.8 The provisions of this Section 11 shall remain in perpetuity and shall survive termination of this Agreement for any reason.

12. IDC’S EMPLOYEES
IDC shall remain responsible for its employees and agents utilized in the fulfillment of this Agreement.

13. INDEPENDENT CONTRACTOR
IDC and Licensee agree that at all times its personnel engaged in the performance of this Agreement shall not be considered to be the agents or employees of the other party and nothing in this Agreement shall be construed to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14. MISCELLANEOUS

14.1 Modifications. This Agreement may not be amended or modified except by a written instrument and signed by the parties.

14.2 Choice of Law. This Agreement shall be deemed to be entered into and shall be construed in accordance with the laws of the State of Texas. Any dispute or claim arising out of or related to this Agreement shall be resolved exclusively in the United States District Court, Texas, and each party hereby submits to the jurisdiction and venue of foregoing courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement.

14.3 Assignment. Each party agrees that it shall not assign any part of its rights or obligations hereunder. Any attempt by one party to assign or subcontract this Agreement without the written consent of the other party shall be null and void and of no force or effect.

14.4 Waiver. No delay or omission on the part of any party hereto in exercising any right hereunder shall operate as a waiver of such right or any other right under this Agreement.

14.5 Paragraph Headings. The paragraph headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.

14.6 Exhibits. All exhibits referred to, in, or attached to this Agreement are incorporated into and made part of this Agreement as if fully set forth herein.

14.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

14.8 Termination. If either party materially breaches any provision of this Agreement and fails to cure such breach within 30 days after receipt of notice of such failure, then the non-breaching party shall have the right to terminate this Agreement immediately by giving notice thereof. Notwithstanding the foregoing, if such breach is not capable of being cured within such 30-day period, this Agreement shall not be terminable so long as the party committing such breach shall have established to the reasonable satisfaction of the other party that it is using all diligent efforts to affect such cure and subsequently affects such cure. The foregoing rights of termination are in addition to all other rights and remedies of the parties provided in this Agreement or by law.

14.9 Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party.

14.10 Entire Agreement. This Agreement, including any Exhibits, constitutes the entire contract between the parties hereto pertaining to the subject matter hereof and supersedes all prior proposals, agreements, understandings, negotiations, and discussions, whether written or oral, of the parties in connection with the subject matter hereof.

14.11 Consent. All consents required under the Agreement will not be unreasonably withheld.

14.12 Good Faith. The parties will deal with each other fairly and in good faith in carrying out and interpreting this Agreement.

14.13 Survival of Provisions. The terms and provisions of this Agreement that by their sense and context are intended to survive performance by either or both parties shall so survive the performance and termination of this Agreement, including without limitation Sections 6 (Title), 7 (Warranties), 8 (Indemnifications), 10 (Limitation of Liability), 11 (Confidentiality), 14.2 (Choice of Law), and 14.13 (Survival of Provisions).