Please read our Terms of Service. If you do not agree to the Terms of Service, please e-mail us at info@simplecw.com to cancel your account.

 

 

SIMPLECOURSEWARE, LLC

LICENSE TERMS AND CONDITIONS

  1. DEFINITIONS In this Agreement, the following terms shall have the following meanings:

“Affiliate” means a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person or entity specified (as used in this definition, “control”, “controlled by” and “under common control with” shall mean the possession, directly or indirectly, of power to direct or cause the direction of the management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise));

“Authorized Users” means employees of Customer and its third party consultants acting on Customer’s behalf who have a need to use the Licensed Products to accomplish Customer’s internal business purposes and who are bound in writing (i) to protect the confidential information and property of Licensor and (ii) to comply with all restrictions of this Agreement.

“Documentation” means the user manuals, technical specifications and other related documents associated with the Software provided by Licensor to Customer hereunder;

“Effective Date” shall be the date so designated on the Cover Page;

“Equipment” means Customer’s computer hardware equipment and operating environment as more specifically described in Schedule 1;

“License Fee” means the license fee(s) specified in Schedule 1;

“License Key” means the license key(s) specified in Schedule 1;

“Licensed Products” means the Software and the Documentation;

 

“Software” means all Licensor software products listed on the Cover Page, together with all updates, revisions, error corrections and enhancements thereof which are provided by Licensor to Customer.  The term “Software” shall also include additional software products that may be listed on any addendum signed and dated by both parties, which upon its execution shall be governed by the terms and conditions of this Agreement;

“Term” means the period of time during which the License Key shall be active specified in Schedule 1;

“Third Party” means a person or entity other than Licensor or Customer and includes, without limitation, a party’s Affiliates;

  1. License
    • Grant. Subject to the terms and conditions of this Agreement, including any special terms set forth on Schedule 1 hereto, Licensor hereby grants to Customer a non-exclusive,  non-transferable, license during the Term (subject to termination in accordance with the terms of this Agreement) to install and use a single copy of the executable, object code version of the Software delivered by Licensor in accordance with the Documentation for the Customer’s internal purposes.  The Licensed Products may be accessed and used only by Authorized Users.  Customer shall be fully liable for all actions of its employees and consultants and their failure to comply with any applicable provision of this Agreement.  Customer shall not sell, sub-license, distribute, or publish the Licensed Products or otherwise make the Licensed Products available to any Third Party who is not an Authorized User.
    • Copies. Customer may make one copy of the object code of the Software for back-up and disaster recovery purposes, and shall be permitted to use such copies only if the primary licensed copies become inoperable or are destroyed or damaged.  Customer shall notify Licensor promptly upon any such event, and shall cease any such use upon the remediation of the condition preventing use of the primary licensed copy.
    • Customer will not translate, adapt, reverse-engineer, decompile, create derivative works, disassemble or modify the Licensed Products in whole or in part for any purpose.  Customer will not publish, rent, lease, license, sell, sub-license, assign, transmit, or use the Licensed Products to provide services to Third Parties whether as a service bureau, an application service provider, or otherwise, process and/or store the data of Third Parties and/or otherwise transfer the Licensed Products to any Third Party.  Customer shall not allow any Third Party who is not an Authorized User to access the Licensed Products.  Customer will comply with all applicable laws and regulations relating to the use of the Licensed Products.
    • Software Dependencies. Customer understands that certain third party databases, operating systems, network applications, servers, peripherals, and other software and hardware described in the Documentation (“Third Party Products”) may be required for proper use of the Software.  Customer is solely responsible for obtaining and maintaining all Third Party Products necessary to operate the Licensed Products.  Without limiting the generality of the foregoing, Customer is solely responsible for the safety and security of its servers and data.  Licensor is not responsible for supplying, maintaining, supporting or configuring such Third Party Products, and shall not be liable for any failure of Customer to ensure that all Third Party Products are properly installed, configured and maintained.
    • Reservation of Rights. Licensor and/or its licensors reserve all rights not expressly granted herein, and except as stated in this Agreement, Customer shall make no other utilization of the Licensed Products, or use them for the benefit of any other person or entity, or permit any Third Party to make such utilization, and Customer shall have no other rights or licenses with respect to the Licensed Products or other intellectual property rights of Licensor.
  2. Support, TRAINING AND OTHER SERVICES. Licensor shall have no obligation to provide any support, training, installation, configuration or other services with respect to the Licensed Products except as expressly set forth in Schedule 1 of this Agreement or in a separate written agreement between the parties.
  3. Intellectual Property Rights.
    • Ownership. Customer agrees and acknowledges that Licensor owns all right, title and interest in and to the Licensed Products and all intellectual property therein, and that Customer shall not obtain or claim any ownership interest in the Licensed Products, or any portion thereof, or any intellectual property therein.  Customer agrees and acknowledges that the Licensed Products contain the valuable trade secrets and proprietary information of Licensor and its suppliers which have been developed at significant expense over many years.  Customer shall not obscure, alter or remove any patent, copyright, trademark, or service mark marking or legend contained on or in any Licensed Products.   Customer shall not register any trademark, trade name, corporate name, logo, copyright, domain name or design of Licensor, or anything confusingly similar thereto, anywhere in the world.
    • Security. Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Licensed Products, and to ensure that no persons authorized to have such access shall take any action which would be in violation of this Agreement.  Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Software, securing the Customer’s network on which such Software resides from outside intrusion, preventing the making of unauthorized copies of the Licensed Products, and administering and monitoring use of the Software.
    • Reporting. Customer shall promptly report to Licensor any actual or suspected violation of this Section 4, and shall take such further steps as may reasonably be requested by Licensor to prevent or remedy any such violation.
    • Relief. Because unauthorized use or transfer of the Licensed Software is likely to diminish substantially the value of such Licensed Software and irreparably harm Licensor and will not be susceptible of cure by the payment of monetary damages, if Customer breaches the provisions of Sections 2, 4 or 9 of this Agreement, Licensor shall be entitled to injunctive and/or other equitable relief, in addition to other remedies afforded by law, to prevent or restrain a breach of Sections 2, 4 or 9 of this Agreement without having to prove any damages or post any bond or surety.
  4. Fees and Payment Terms
    • License Fees. Customer shall pay the License Fees no later than thirty (30) days from the date of Licensor’s invoice in U.S. Dollars to the account specified in Licensor’s invoice.
    • Overdue Payments. Customer agrees to pay interest on all outstanding sums from the date payment was due until the date of payment at a rate of 1.5% per month (or the highest rate allowed by law, if lower).  Interest payable under this Section 5.2 may be capitalized by Licensor on the first day of each calendar month.  In addition, Customer shall reimburse Licensor for all costs and expenses incurred by Licensor in connection with the collection of overdue amounts, including reasonable attorneys’ fees, collection agency fees, and court costs.
    • Taxes, etc. The License Fees are exclusive of all federal, state, local and foreign taxes, levies and assessments. Customer agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed on Customer or Licensor arising out of this Agreement, excluding any tax based on Licensor’s net income.  The License Fees shall be grossed-up for any non-refundable withholding tax imposed on such License Fees by a foreign governmental entity.
    • Audit. Customer shall permit Licensor, its employees or agents, during regular business hours upon one (1) weeks notice (unless Licensor has reason to believe that Sections 2, 4 or 9 has been breached, in which case Licensor may audit Customer’s activities upon 24 hours notice), to audit Customer’s use of the Licensed Products at any premises owned or controlled by Customer.  Customer agrees to provide Licensor’s designated audit team access to the relevant Customer records and facilities.  Licensor will pay for any such audit unless the audit reveals a material breach of any provision of this Agreement, in which case Customer shall reimburse Licensor for such audit costs.
  5. beta software – no Warranty
    • Beta Software. Customer acknowledges that the Licensed Products are beta versions and are still in the testing phase.  Customer is advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the Licensed Products and Documentation.
    • LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE LICENSED PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE LICENSED PRODUCTS WILL MEET THE CUSTOMER’S REQUIREMENTS. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE LICENSED PRODUCTS, DOCUMENTATION, AND ANY RELATED SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT OR ANY THEORY OF LIABILITY IS TO TERMINATE THIS AGREEMENT, CEASE USING THE LICENSED PRODUCTS, AND DELETE THE LICENSED PRODUCTS FROM CUSTOMER’S COMPUTER SYSTEMS.
  6. Intellectual Property Indemnity
    • Indemnity. Licensor will indemnify Customer against any damages, settlements and reasonable legal fees incurred by Customer in any Third Party claim brought against Customer alleging that the Customer’s use of the Licensed Products in accordance with the terms and conditions of this Agreement infringes any United States patent, copyright, trademark or trade secret of a Third Party, provided that: (a) Customer notifies Licensor in writing immediately after it becomes aware of any such claim; (b) Customer makes no admissions in respect of such claim and complies with all reasonable instructions relating to the claim given by Licensor; (c) Customer allows Licensor, at Licensor’s expense, to assume full control of the claim/defense; and (d) Customer provides to Licensor all reasonable assistance and information required for the defense of such claim.
    • Abatement. Subject to Section 1 above, if at any time, an allegation of infringement of Third Party intellectual property rights is made in relation to Customer’s use of the Licensed Products, or if in Licensor’s opinion such an allegation is likely to be made, Licensor may at its own expense procure the right for Customer to continue using the Licensed Products or modify or replace the Licensed Products so that they become non-infringing, provided, however, that if neither of the foregoing alternatives is commercially reasonable, Licensor may, at any time, terminate this Agreement.  In such event, Licensor shall refund the License Fees paid by Customer for the Licensed Products depreciated evenly over a five year period to reflect Customer’s use of the Software.
    • Exceptions. Notwithstanding Section 7.2, Licensor shall have no liability to indemnify Customer under Section 7.1 and Customer shall indemnify Licensor to the extent that any claim arises from (a) Customer’s breach of any term or condition of this Agreement; (b) any alternations, modifications, repairs or any other work done on or in relation to the Licensed Products by anyone other than Licensor, unless authorized in writing by Licensor; (c) the combination or use of the Licensed Products with any data, software, hardware or goods not supplied or authorized in writing by Licensor, where the Licensed Products would not themselves be infringing or otherwise be the subject of the claim; (d) use of the Licensed Products in any unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose; (e) any claim of infringement of an Intellectual Property Right in which Customer or a Customer Affiliate has a pecuniary or other material interest; and/or (f) the failure to install a new version of the infringing Software, where such new version was not infringing.
    • Exclusive Remedy. The indemnification remedies set forth in this Section 7 shall constitute the exclusive remedies of Customer, and the exclusive liability of Licensor, with respect to the claims described in this Section 7.
  7. LIMITATION OF LIABILITY
    • LICENSOR shall NOT be liable to CUSTOMER under or in connection with this Agreement for: (a) loss of actual or anticipated profit, (b) losses caused by business interruption, (c) loss of goodwill or reputation, (d) loss of or corruption of data, or (e) any indirect, punitive, exemplary, multiple, special or consequential cost, expense, loss or damage, even if such cost, expense, loss or damage was reasonably foreseeable or might reasonably have been contemplated by LICENSOR and whether arising from breach of contract, tort, negligence, breach of statutory duty or otherwise.
    • The maximum liability of Licensor to Customer under or in connection with this agreement whether arising from breach of contract, tort, negligence, breach of statutory duty or otherwise shall not exceed in aggregate the licenSe fees paid by Customer to Licensor under this Agreement DURING THE TWELVE (12) MONTHS PRIOR TO THE FACTS GIVING RISE TO CUSTOMER’S CLAIM.
    • Without limiting the disclaimers or limits set forth above, Licensor will not be liable for any loss or damage caused by or resulting from a defect in the Licensed Products if the loss or damage was caused after the Customer had been supplied with an Update and if the installation of such Update would have prevented such loss or damage.
  8. Confidentiality
    • Confidential Information. As used in this Agreement, “Confidential Information” of Licensor shall mean the Licensed Products, the terms and pricing under this Agreement and all proprietary information disclosed by Licensor or any of its Affiliates which by its nature appears to be confidential whether provided in writing, verbally or visually and to the extent previously, presently, or subsequently disclosed to Customer, including but not limited to ideas, techniques, drawings, works of authorship, models, inventions (whether or not patentable), data, databases, know-how, processes, information related to the current, future, and proposed products and services, financial information, customer lists, employees, business and contractual relationships, business forecasts, business plans, sales, marketing plans and information relating to Third Parties; and “Confidential Information” of Customer shall mean the terms and pricing under this Agreement and any confidential details of Customer’s system configuration disclosed to Licensor.
    • Exceptions. A party’s Confidential Information shall not include information that:
      • is or becomes a part of the public domain through no act or omission of the other party;
      • was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
      • is lawfully disclosed to the other party by a Third Party without restriction on disclosure; or
      • is independently developed by the other party.
    • Restrictions. Each party will hold the other’s Confidential Information in confidence and, unless required by law, will not make the other party’s Confidential Information available in any form to any Third Party or use the other party’s Confidential Information for any purpose other than for the performance of its obligations hereunder, for a period of fifteen (15) years from the expiration or termination of this Agreement.  Each party shall only permit access to Confidential Information of the other party to those of its Affiliates, employees, officers, directors or any of its Affiliates’ employees, officers, or directors (collectively, the “Representatives”) having a need to know.  Each party shall be responsible for ensuring that their respective Representatives do not disclose, use or distribute Confidential Information in violation of the terms of this Agreement.
    • Termination. Following the termination of this Agreement, each party shall (a) return to the other party all tangible materials containing or including any items of Confidential Information, (b) delete any electronically stored and destroy all tangible materials created by the party receiving such Confidential Information which incorporate or include such Confidential Information, and (c) at the other party’s request, provide to the other party an affidavit attesting to such return, deletion or destruction.
  9. Term and Termination
    • Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the date set forth in Schedule 1, unless terminated in accordance with the terms of this Agreement.
    • Termination. This Agreement shall continue in accordance with Section 1 above unless earlier terminated:
      • by either party, if the other party materially breaches any term of this Agreement, and where the breach is capable of remedy, the breaching party fails to remedy the breach within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach and requiring remedy of it; or
      • as set forth in Sections 6.2 and 7.2; or
      • effective immediately and without any notice requirement in the event the other party ceases to conduct business in the normal course, becomes insolvent or makes a general assignment for the benefit of creditors, becomes generally unable to pay its debts as they fall due, suffers or permits the appointment of a receiver over its business or assets, becomes subject to any proceeding under any statute of any governing authority relating to insolvency or the rights to creditors which is not dismissed within sixty (60) days, or the equivalent occurs in any jurisdiction.
    • No Prejudice. Rights of termination under this Section 10 shall be without prejudice to any other rights or remedies whether subsisting by virtue of this Agreement or otherwise.
    • Effects of Termination. Upon termination of this Agreement for any reason:
      • all rights, licenses and obligations of the parties shall immediately cease and terminate provided however, that termination of this Agreement shall not relieve Customer of its obligations to pay any outstanding fees, charges or other sums that have accrued or are otherwise outstanding or owed by Customer to Licensor at the date of termination;
      • Customer shall immediately stop all use of the Licensed Products;
      • Customer shall immediately delete all copies of the Licensed Products held or controlled by Customer on computer or computer-readable media (provided that Customer may retain and use a single copy of the Licensed Products on disk, tape or other similar medium for data archival purposes or in order to extract and/or transfer any of Customer’s data stored and/or processed using the Licensed Products for use with an alternative software product) and shall return all other copies of the Licensed Products to Licensor; and
      • Customer shall certify in writing to Licensor that it has complied fully with the provisions of this Section 10.4.
    • Survival. Sections 4.1, 4.4, 5, 6.4, 7, 8, 9, 10.4, 11.3 and 11.9 shall survive termination of this Agreement in accordance with their terms.
  10. MISCELLANEOUS
    • Force Majeure. Neither party shall be liable for any delay or failure in performing any of its obligations under this Agreement if such delay or failure is caused by circumstances outside the reasonable control of the party concerned.  This includes, but is not restricted to, any delay caused by any act or default of the other party.
    • No Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
    • Assignments. Neither this Agreement nor any rights, obligations or licenses granted hereunder may be assigned or delegated by Customer without the prior written consent of Licensor.  For purposes of this Section, a merger, acquisition or change of control of Customer shall be deemed to be an assignment.  Any attempted assignment in violation of this Section shall be void and of no force or effect.  This section shall limit both a party’s right and ability to assign.  This Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
    • Amendment. This Agreement shall not be amended or modified except in writing by duly authorized representatives of the parties.
    • Third Party Rights. It is not intended that anyone other than the parties to this Agreement be entitled to obtain any benefit under it or to enforce any of its terms.
    • Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
    • All notices which are required to be given under this Agreement shall be in writing and sent to the addresses of the parties set out on the Cover Page or to such other address as a party may designate by notice given in accordance with this Section.  Any such notice may be delivered personally, by overnight courier service or facsimile transmission and will be deemed to have been received:  by hand delivery, at the time of delivery; by courier service, forty-eight (48) hours after the date of mailing; and by facsimile transmission, immediately on transmission provided that the facsimile confirmation report shows that the facsimile transmission was successfully transmitted.
    • Entire Agreement. This Agreement forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between them.  No purchase order or other document issued by Customer in connection with the Licensed Products shall be binding on Licensor, except as to the number of Licensed Products ordered and the price payable therefor.  Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely upon and shall have no remedy in respect of any statement, representation, warranty or understanding of any person unless expressly set out in this Agreement.
    • Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California USA, without regard to its conflicts of laws principles, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods.  Subject to Section 11.10, any dispute concerning this Agreement or the Licensed Products shall be brought solely in the state or federal courts located in the County of San Diego.  Customer consents to the venue and jurisdiction of such courts.
    • Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, or the Licensed Products, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Diego, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the foregoing, Licensor shall be entitled to enforce this Agreement in any court of competent jurisdiction in the event of any breach or threatened breach by Customer of Sections 2, 4, or 9.
    • Export Laws. Customer acknowledges that the Licensed Products and all related technical information and materials may be subject to export controls under the U.S. Export Administration Regulations, or import or use restrictions in non-U.S. jurisdictions or countries. Customer agrees not to export or re-export, or otherwise divert, transfer or disclose, directly or indirectly, the Licensed Products or related technical information and materials or the direct products thereof in violation of any export laws of the United States or any import or use laws of any other applicable jurisdiction.  Customer shall indemnify and hold Licensor harmless from and against any claim, loss, liability or damage suffered by Licensor resulting from or related to Customer’s breach of this Section 11.10
    • Independent Contractors. The relationship between the Customer and Licensor is that of independent contractors.  Neither party, nor its agents or its employees, shall be deemed to be an agent, partner or joint venturer of the other party.  Neither party shall have the right to bind the other party, transact any business in the other party’s name or in its behalf or incur any liability for or on behalf of the other party.
    • Counterparts. This Agreement may be executed digitally and in any number of counterparts, each of which, when taken together, shall be an original.
    • Reference. Licensor shall have the right to name Customer as a licensee of the Licensed Products and to use any feedback or comments made by Customer in its marketing and promotional materials.