COURSEWARE LICENSE AGREEMENT

PLEASE READ THIS COURSEWARE LICENSE AGREEMENT (“CLA”) CAREFULLY. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, BROWSING, CLICKING ON AN “ACCEPT” BUTTON, OR OTHERWISE USING ANY AGILE MARKETING ALLIANCE, INC. (“AMA”) MATERIALS (AS DEFINED BELOW), YOU (“LICENSEE”) AGREE TO THE TERMS OF THIS CLA. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, AND DO NOT CLICK ON AN “ACCEPT” BUTTON, OR FURTHER USE THE MATERIALS. 


  1. LICENSE GRANT AND RESTRICTIONS 

    1. License Grant. Subject to the term of this CLA, including without limitation, payment of all applicable fees, AMA hereby grants to Licensee a revocable, limited, non-exclusive, non-transferable, non-assignable, license (the “License”) for a limited number of Attendees to engage with the courseware , provided by AMA to Licensee pursuant to this CLA (the “Materials”) solely for the purpose of learning in an online environment. Licensee shall purchase a License for each individual to access and engage with the Materials (an “Attendee”). Any License shall only be valid during the term identified on the Order Submission (the “Service Period”).

    2. Proprietary Rights. AMA retains all ownership right, title, and interest in and to all programs, procedures, information, and documentation associated with the Materials.  Except as expressly provided herein, AMA does not grant any express or implied right to Licensee or any Attendee under any intellectual or proprietary rights.  The Materials shall at all times remain the sole property of AMA. Except for the license set forth in Section I(A), nothing contained in this CLA shall grant to Licensee any right, title or interest in the Materials or any updates or improvements thereto, or any intellectual property rights related thereto. 


  1. PROPRIETARY RIGHTS

    1. Prohibited Use. Licensee acknowledges that the Materials constitute valuable trade secrets and other intellectual property of AMA. Accordingly, Licensee shall not, nor permit others to: 1) Reproduce any Materials beyond printing pages for personal learning of the Licensee; 2) Distribute any Materials to any non-Attendees; 3) Permit any third party to access or use the Materials; 4) Modify, sublicense, resell, use for service bureau use, or create derivative works of any Materials, except as expressly permitted herein; 5) Delete, alter, or obscure any trademark, copyright, or other proprietary notices appearing in the Materials; 6) Add or insert any other trademark or copyright into or on any Materials; 7) make any representations, warranties, guarantees, indemnities, similar claims or commitments, actually, apparently, or ostensibly on behalf of AMA regarding the Materials or any ideas, techniques, know how, or methodologies of AMA; or 8) Engage in any unfair, misleading or deceptive practices respecting AMA, AMA’s trademarks or the Materials. 

    2. Feedback.Any comments, suggestions, or feedback provided by Licensee or Attendees regarding the Materials ("Feedback") shall be owned exclusively by AMA. By providing Feedback, Licensee agrees to assign, and hereby assigns, all rights, title, and interest in and to the Feedback to AMA, including any intellectual property rights therein. Licensee further agrees not to assert any moral rights or similar rights in the Feedback against AMA.  AMA may use, modify, or incorporate the Feedback into its Materials, products, services, or other offerings, without any obligation to compensate Licensee or Attendees, or obtain further consent. AMA may also disclose or publish the Feedback in whole or in part, provided that any personally identifiable information or attribution of Licensee or Attendees are removed or anonymized.


  1. PAYMENT

    1. Payment of License Fee. Prior to accessing the Materials, Licensee shall purchase a License for each Attendee. In the event Licensee wishes to increase the number of Attendees beyond the maximum number of Attendees for which fees have been paid, Licensee shall be required to pay additional fees associated with the increased number of Attendees. 

    2. Fees. All fees associated with the purchase of a License shall be described on the applicable purchasing platform, online transaction or written order form signed by the Parties (the “Order Submission”). Unless otherwise stated in the Order Submission, charges are due NET thirty (30) days from the invoice date. Licensee shall pay all fees specified in all applicable Order Submissions. All fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an Order Submission: (i) fees are based on Services purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable, except where stated in accepted Order Submission; and (iv) the number of Attendees purchased cannot be increased or decreased during the Service Period without a new Order Submission executed between the parties reflecting such change. Prices are subject to change at any time in AMA’s sole and exclusive discretion. 

    3. Taxes. Licensee shall pay and be solely liable for all taxes, including sales, use, duties, excise, and any other taxes with respect to the Materials (other than taxes based on AMA’s net income). 


  1. USER OBLIGATIONS.  By accessing and/or using the Materials, you hereby warrant and agree that you shall abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Materials.  You further warrant and agree to assume any and all responsibility for acts, omission, or uses related to your access to and/or use of the Materials. 


  1. DISCLAIMER.  ALL MATERIALS ARE PROVIDED "AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 



  1. LIMITATION OF LIABILITY.  WITH THE EXCEPTION OF THE INDEMNITY OBLIGATIONS SET FORTH IN SECTION 8 BELOW, UNDER NO CIRCUMSTANCES WILL AMA BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS CLA EVEN IF AMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AMA’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS CLA AND THE MATERIALS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WITH THE EXCEPTION OF SECTION 8 BELOW, WILL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID TO AMA IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM HEREUNDER.

 

  1. CONFIDENTIALITY. The Materials, and other information provided to Licensee and Attendees by AMA, contain proprietary trade secrets and confidential information of AMA (the "Confidential Information").  Licensee agrees to secure and protect the confidentiality of this Confidential Information using at least as great a degree of care as Licensee uses to maintain the confidentiality of its own confidential information of a similar nature, but in no event using less than reasonable efforts.  Licensee shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.


  1. INDEMNIFICATION. AMA will defend, indemnify and hold harmless Licensee and its personnel, successors, and assigns from and against any third party claim or suit (which, for purposes of Section 6 of this Agreement, a “third party” is a party that is not a party to this Agreement or Order Submission or an Attendee (or such party’s affiliate)) alleging that the Materials, when used as intended, infringe or misappropriate the intellectual property rights of a third party brought against them, and will pay any final judgment from a court of competent jurisdiction or any AMA-approved settlement, provided Licensee notifies AMA of the existence of such claim in writing as soon as reasonably possible upon learning of it, and provided AMA is given full authority to control the defense, cost and settlement of the claim.


If any portion of the Materials is subject to an alleged infringement claim that prohibits or impairs Licensee’s use of the Materials, AMA will, at its own cost and discretion, either procure for Licensee the right to continue the Materials or modify the Materials so that they are non-infringing but retain materially equivalent functionality. If neither of the foregoing options are available on terms that are commercially reasonable for AMA, then AMA may terminate Licensee’s right to access and use such portion of the Materials subject to the infringement claim, and AMA will refund Licensee any prepaid Fees for the unused portion of the applicable terminated Materials’ Service Period, prorated from the effective date of termination. 


  1. TERMINATION

    1. Term and Termination. This CLA shall commence on the first date of the Service Period identified in the Order Submission and shall remain in full force and effect until the termination in accordance with the terms of this CLA. AMA may terminate this CLA (i) immediately upon written notice to Licensee if Licensee materially breaches this CLA, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 

    2. Effect of Termination. Upon termination or expiration of this CLA for any reason: (i) all rights and obligations of both parties, including all licenses granted hereunder shall immediately terminate; (ii) within ten (10) business days after the effective date of termination, Licensee shall return to or destroy all AMA Intellectual Property to AMA, and in the case of destruction, certify such destruction. 


  1. MISCELLANEOUS  

    1. Entire Agreement. This CLA and any Order Submission constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral or written. All pre-printed terms of any Licensee order or other business-processing document shall have no effect. 

    2. Severability. If any provision in this CLA is determined to be unenforceable by any court of competent jurisdiction, such provision shall be modified to be enforceable and consistent with the parties’ intent as closely as possible. Further, if the remainder of the CLA is not materially affected by such determination and is capable of substantial performance, then the remainder will be enforced to the extent permitted by law. 

    3. Waiver. The failure to enforce or the waiver by either party of one default or breach of the other party shall not be considered a waiver of any subsequent default or breach. 

    4. Notices. All notices required or permitted hereunder shall be in writing, delivered personally, by facsimile, by certified or registered mail, or by nationally recognized overnight courier (e.g. FedEx) at the parties’ respective corporate addresses. All notices shall be deemed effective upon personal delivery; or on the business day following receipt by telephonic facsimile; or when received if sent by certified or registered mail or by overnight courier. 

    5. Choice of Law. This License is governed by the laws of the State of Colorado, excluding its conflicts of laws provisions. The parties agree that the exclusive jurisdiction of any suits arising out of, relating to, or in any way connected with this CLA shall be in the state or federal courts, as applicable, located in Denver, Colorado. 

    6. Dispute Resolution. In the event Licensee has a dispute related to the License, Licensee shall notify AMA in writing of the nature of the dispute, describing in reasonable detail the facts and other relevant information underlying the dispute. If corrective action is not agreed upon, the dispute shall be mediated in Boulder, Colorado. If mediation fails, the dispute shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having competent jurisdiction thereof. Notwithstanding the foregoing, AMA may at any time seek interim or permanent relief in any court of competent jurisdiction for disputes relating to noncompliance with confidentiality obligations or any provisions of this CLA or any provision of this CLA involving AMA’s intellectual property rights. 

    7. Amendments. Any amendment or change to this License must be in writing and signed by both Licensee and AMA to be binding. 

    8. Survival. The parties hereby agree that those provisions that by their nature are intended to survive the termination of this agreement shall survive the termination notwithstanding the cause of termination of this CLA.


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