Introduction
This Edmego Learning 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 Edmego Learning (“Edmego Learning”) (the “LICENSOR”) for Edmego Learning Online Training services accompanying this EULA, which may include access to Edmego Learning Employee Learning Portal (“LMS”) and any associated media, and “online” or electronic documentation (“Edmego Learning Online Training”).
A. Edmego Learning Online Training Services Product also includes any Edmego Learning Online Training Services upgrades or updates, language packs, add-on Components, web services and/or supplements that Edmego Learning may provide to You or make available to You after the date You obtain Your initial access of Edmego Learning 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 Edmego Learning 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 Edmego Learning Employee Learning Portal and may include associated media and “online” or electronic documentation (the “Edmego Learning Online Training Services”) on Licensor’s application server over the Internet, and (ii) transmit data related to Licensee’s use of Edmego Learning Online Training Services over the Internet.
B. Edmego Learning grants you a license to access Edmego Learning Online Training services for the term specified in your agreement. “You” means the company, entity or individual whose funds are used to pay the license fee. “Use” means accessing pre-recorded videos, electronic materials and online training services. You may not rent, lease, lend, sell or sublicense Edmego Learning Online Training to another person, company or other entity not entitled by your licensing agreement without express written permission.
2. Use and Access
A. Subject to the restrictions on use as set forth herein, Licensee will have access to Edmego Learning Online Training Services and Licensor’s application server for the purpose of using Edmego Learning Online Training Services for its intended purpose and in accordance with the specifications set forth in any documentation relating to Edmego Learning 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 Edmego Learning Online Training Services only for its internal business operations and will not knowingly permit Edmego Learning 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 Edmego Learning Online Training Services or to transfer or assign rights to access or use Edmego Learning Online Training Services, except as expressly provided herein. Licensee may not modify, translate, reverse engineer, decompile or create derivative works based upon Edmego Learning Online Training Services. Licensee agrees to not knowingly use Edmego Learning 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 Edmego Learning 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 Edmego Learning 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 Edmego Learning Online Training Services data. Licensee is responsible for keeping accurate records within Edmego Learning Online Training Services for billing purposes.
C. The fees for the license of Edmego Learning 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 Edmego Learning Online Training Services becomes available to Licensee via the internet. You agree to pay all attorneys’ and collection fees arising from efforts to collect any past due amounts from you.
4. Customization
A. Certain customization is available upon request.
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 Edmego Learning 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. Terms and Conditions
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 Edmego Learning 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. Your services license confers no title or ownership of Edmego Learning Online Training Services and should not be construed as a sale of any right.
8. Confidentiality
A. Licensee acknowledges that Edmego Learning 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 Edmego Learning Online Training Services and other Edmego Learning 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 Edmego Learning Online Training Services and has the necessary rights to license Edmego Learning Online Training Services. Licensor warrants Edmego Learning Online Training Services is developed and will be provided in conformity with generally prevailing industry standards. Licensee must report any material deficiencies in Edmego Learning 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 Edmego Learning 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 Edmego Learning 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 Edmego Learning 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 Edmego Learning 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. Attorney’s 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
Edmego Learning 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 Edmego Learning Online Training is transferred to you. You further acknowledge that title and full ownership rights to Edmego Learning Online Training Services will remain the exclusive property of Edmego Learning and you will not acquire any rights to Edmego Learning 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 Edmego Learning Online Training University, nor any other learning materials provided to you.
20. Amendments
Edmego Learning reserves the right to amend this Agreement at any time.