The Training Factor End User License Agreement
Description: This The Training Factor End User License Agreement ("EULA") is a legal agreement between you the End User ("You" means an individual or a recognized legal entity) (the "LICENSEE") and The Training Factor LLC (“TTF”) (the "LICENSOR") for the Training Factor Online Training services accompanying this EULA, which may include access to the The Training Factor Employee Learning Portal ("LMS") and any associated media, and "online" or electronic documentation ("The Training Factor Online Training").
A.
The Training Factor Online Training Services Product also includes any Training
Factor Online Training Services upgrades or updates, language
packs, add-on
Components, web services and/or supplements that TTF may provide to You or make
available to You
after the date You obtain Your initial access of the Training Factor Online
Training Services Product to the
extent that such items are not
accompanied by a separate license agreement or terms of use.
B. Acceptance and Refusal: By logging in with the provided username and password
, You certify that You have read and understand this agreement and agree to be
bound by the terms of this EULA. If You
do not agree to the terms of this EULA, do not access or use the Training Factor
Online Training Services
Product.
1. Grant of License
A.
Subject to the terms and conditions herein, Licensor hereby grants Licensee a
nonexclusive license to (i) access and execute The Training Factor™ Employee
Learning Portal and may include associated media and "online" or electronic
documentation (the "Training Factor Online Training Services") on Licensor’s application server over the
Internet, and (ii) transmit data related to Licensee's use of the Training
Factor Online Training Services over
the Internet.
2. Use and Access
A.
Subject to the restrictions on use as set forth herein, Licensee will
have access to the Training Factor Online Training Services and Licensor's application server for the purpose of
using the Training Factor Online Training Services for its intended purpose and in accordance with the
specifications set forth in any documentation relating to the Training Factor
Online Training Services provided
by Licensor. Such use and access will be continuous on a 24/7 basis except for
interruptions by reason of reasonable and customary maintenance or downtime
beyond Licensor's reasonable control.
B.
Licensee will use the Training Factor Online Training Services only for its internal business operations
and will not knowingly permit the Training Factor Online Training Services to be used by or for the benefit of
anyone other than Licensee. Licensee will not have the right to re-license or
sell rights to access and/or use the Licensed Training Factor Online Training
Services or to transfer or assign
rights to access or use the Training Factor Online Training Services, except as expressly provided herein.
Licensee may not modify, translate, reverse engineer, decompile or create
derivative works based upon the Training Factor Online Training Services. Licensee agrees to not knowingly use
the Training Factor Online Training Services in a manner that is in violation of any applicable laws including
intellectual property and copyright laws. Licensor expressly reserves all rights
not expressly granted to Licensee herein.
C.
Licensee will not: (i) transmit or share identification or password codes
to persons other than authorized users (ii) permit the identification or
password codes to be cached in proxy servers and accessed by individuals who are
not authorized users, or (iii) permit access to the Training Factor Online
Training Services through a single
identification or password code being made available to multiple users on a
network.
3. Price and Payment
A.
Prior to LMS initiation, Licensee will be provided a fees quote, once
agreed upon by both parties and LMS is initiated,
Licensee will pay Licensor the quoted
and agreed upon fees (the “Fees”) for the license of the Training Factor Online
Training Services and access to
Licensor's application server.
B.
Site/unit count, which the fees are based upon, may be increased or
decreased at any time without penalty. Unless otherwise specified fees are based
on unit count in the Training Factor Online Training Services data.
Licensee is responsible for keeping accurate records within the Training Factor
Online Training Services for
billing purposes.
C.
The fees for the license of the Training Factor Online Training Services do not include taxes. If
Licensor is required to pay or collect any federal, state, local, or value-added
tax on any fees charged under this Agreement, or any other similar taxes or
duties levied by any governmental authority, excluding taxes levied on
Licensor’s net income, then such taxes and/or duties will be billed to and paid
by Licensee within 30 days of receipt.
D.
Licensor shall invoice Licensee for the agreed upon fees on a monthly
basis and payment shall be due within thirty (30) days of the invoice date.
Initial Fees may be invoiced once the website interface for the Training
Factor Online Training Services
becomes available to Licensee via the internet.
4.
Customization
A.
Customization is available at $125/hour
B.
Custom Course Design available to be determined on a course-by-course
basis. Please allow 4-6 weeks for design time.
C.
Licensor shall submit all customized advertising and website content,
copy, graphics and other work product created by Licensor pursuant to this
Agreement to Licensee for review and approval prior to any distribution or
publication of such work product.
Furthermore, Licensor agrees to re-submit any content to Licensee for review in
the event any changes or revisions are made to the prior approved work product.
5. Technical
Support
Licensor will supply telephone support regarding the Training Factor Online
Training Services to Licensee on a
reasonable and necessary basis during normal weekday business hours, excluding
legal holidays. Additionally, Licensor will, if necessary, provide reasonable
support to Licensee through electronic and/or written correspondence.
6. Term
and Termination
A.
This Agreement will automatically renew for successive thirty-day periods
unless either party gives the other party not fewer than thirty (30) days notice
of its intent not to renew, or unless terminated earlier under the terms
contained within this Agreement.
B. Either party may terminate this agreement for material breach, provided,
however, that the terminating party has given the other party at least
twenty-one (21) days written notice of and the opportunity to cure the breach.
Termination for breach will not preclude the terminating party from exercising
any other remedies for breach.
7. Ownership
of Intellectual Property
Title to any proprietary rights in the Training Factor Online Training Services or Licensor’s web site will
remain in and be the sole and exclusive property of Licensor. Licensee will be
the owner of all content created and posted by Licensee.
8. Confidentiality
A.
Licensee acknowledges that the Training Factor Online Training Services and other data on Licensor’s
application server embodies logic, design and coding methodology that constitute
valuable confidential information that is proprietary to Licensor. Licensee will
safeguard the right to access the Training Factor Online Training Services and other
Training Factor Online Training Services installed on
Licensor’s application server using the same standard of care that Licensee uses
for its own confidential materials.
B.
All data pertaining to Licensee disclosed to Licensor in connection with
the performance of this Agreement and residing on Licensor’s application server
will be held as confidential by Licensor and will not, without the prior written
consent of Licensee, be disclosed or be used for any purposes other than the
performance of this Agreement. Licensor will safeguard the confidentiality of
such data using the same standard of care that Licensor uses for its own
confidential materials. This obligation does not apply to data that: (i) is or
becomes, through no act or failure to act on the part of Licensor, generally
known or available; (ii) is known by Licensor at the time of receiving such
information as evidenced by its written records; (iii) is hereafter furnished to
Licensor by a third party, as a matter of right and without restriction on
disclosure; (iv) is independently developed by Licensor as evidenced by its
written and dated records and without any breach of this Agreement; or (v) is
the subject of a written permission to disclose provided by Licensee. Further
notwithstanding the forgoing, disclosure of data will not be precluded if such
disclosure: (i) is in response to a valid order of a court or other governmental
body of the United States; (ii) is otherwise required by law; or (iii) is
otherwise necessary to establish rights or enforce obligations under this
Agreement, but only to the extent that any such disclosure is necessary.
9.
Warranty and Disclaimer:
Licensor represents that the Licensor is
the developer of Training Factor Online Training Services and has the necessary rights to license the
Training Factor Online Training Services.
Licensor warrants the Training Factor Online Training Services is developed and will be provided in conformity
with generally prevailing industry standards. Licensee must report any material
deficiencies in the Training Factor Online Training Services to Licensor in writing within thirty (30) days of
Licensee's discovery of the defect. Licensee's exclusive remedy for the breach
of the above warranty will be for Licensor to provide access to replacement
Training Factor Online Training Services within a commercially reasonable time. THIS WARRANTY IS EXCLUSIVE AND
IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL
OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE
EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES.
10. Limitation of Liability,
Indemnification
A.
Neither party will be liable to the other for special, indirect or
consequential damages incurred or suffered by the other arising as a result of
or related to the use of the Training Factor Online Training Services, whether in contract, tort or otherwise,
even if the other has been advised of the possibility of such loss or damages.
B.
Each party shall indemnify and hold the other party harmless against any
claims incurred by the indemnitor, as well as all reasonable costs, expenses and
attorneys’ fees incurred therein, arising out of or in conjunction with i) the
indemnitor’s breach of this Agreement; or ii) any negligent act or omission of
indemnitor.
C.
Licensor shall, at its own expense, defend or, at its option, settle any
claim, suit or proceeding brought against Licensee by a third party for
infringement or misappropriation of any patent, copyright or trade secret of any
third party by the Training Factor Online Training Services and shall pay any damages finally awarded or
settlement amounts agreed upon to the extent based upon such claims.
D.
Neither Licensor's nor Licensee’s total liability under this Agreement
with respect to the Training Factor Online Training Services, regardless of cause or theory of recovery, will
not exceed the total amount of fees paid by Licensee to Licensor during the
twelve month period immediately preceding the occurrence or act or omission
giving rise to the claim. If such
liability is the direct and sole result of the liable party’s gross negligence,
the foregoing limitation of liability shall not apply.
11. Relation of Parties
Nothing in this Agreement will create or imply an agency relationship between
the parties, nor will this Agreement be deemed to constitute a joint venture or
partnership between the parties.
12. Non-assignment
Neither party will assign this Agreement, in whole or in part, without the
prior written consent of the other party, and such consent will not be
unreasonably withheld. This Agreement will inure to the benefit of, and be
binding upon the parties hereto, together with their respective legal
representatives, successors, and assigns, as permitted herein.
13. Arbitration
Any
dispute arising under this Agreement will be subject to binding arbitration by a
single Arbitrator with the American Arbitration Association (AAA), in accordance
with its relevant industry rules, if any. The parties agree that this Agreement
will be governed by and construed and interpreted in accordance with the laws of
the State of Georgia. The arbitration will be held in Georgia. The Arbitrator
will have the authority to grant injunctive relief and specific performance to
enforce the terms of this Agreement. Judgment on any award rendered by the
Arbitrator may be entered in any Court of competent jurisdiction.
14. Attorneys' Fees
If
any litigation or arbitration is necessary to enforce the terms of this
Agreement, the prevailing party will be entitled to reasonable attorneys' fees
and costs actually incurred.
15. Severability
If
any term of this Agreement is found to be unenforceable or contrary to law, it
will be modified to the least extent necessary to make it enforceable, and the
remaining portions of this Agreement will remain in full force and effect.
16. Force Majeure
Neither party will be held responsible for any delay or failure in performance
of any part of this Agreement to the extent that such delay is caused by events
or circumstances beyond the delayed party's reasonable control.
17. Waiver and Modification
The
waiver by any party of any breach of covenant will not be construed to be a
waiver of any succeeding breach or any other covenant. All waivers must be in
writing, and signed by the party waiving its rights. This Agreement may be
modified only by a written instrument executed by authorized representatives of
the parties hereto.
18. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect
to its subject matter, and supersedes all prior agreements, proposals,
negotiations, representations or communications relating to the subject matter.
Both parties acknowledge that they have not been induced to enter into this
Agreement by any representations or promises not specifically stated herein.
19. Copyright
The Training Factor Online
Training Services is protected by United States copyright law, international
treaty provisions and other applicable law. You acknowledge that no title to the
intellectual property in The Training Factor Online Training is transferred to
you. You further acknowledge that title and full ownership rights to The
Training Factor Online Training Services will remain the exclusive property of
The Training Factor and you will not acquire any rights to the Training Factor
Online Training Services except as expressly set forth in this license. You may
not copy or distribute any DRM (“Digitally Rights Managed”) materials provided
through The Training Factor Online Training University, nor any other learning
materials provided to you.
20. Amendments
The Training Factor reserves the
right to amend this Agreement at any time.