These Terms and Conditions, and the Order Form into which they are incorporated by reference, shall constitute the entire Agreement between the parties.
For valuable consideration paid under the terms of this Agreement, CourseAvenue grants Subscriber for the duration of this Agreement a license to use one or more of its software modules (the "Software") for the development, management, and / or analysis of e-Learning Content ("Content" being limited to the published e-Learning Courses). CourseAvenue agrees to provide Subscriber the computing environment necessary to use the Software for its intended purposes. CourseAvenue agrees to provide Subscriber with a separate account login and password for each user Subscriber identifies. Subscriber is responsible for all uses of the Software, whether or not authorized by Subscriber. Subscriber is responsible for maintaining the confidentiality of Subscriber’s account information, including (without limitation) individual user name and password information. Subscriber agrees to immediately notify CourseAvenue of any unauthorized use of Subscriber’s account as soon as Subscriber becomes aware of such unauthorized use.
Subscriber agrees that all elements of the Software, including (without limitation) actual software, code, web page designs, trademarks, copyrights, and training materials, are the sole property of CourseAvenue. CourseAvenue reserves the right to update, upgrade, add or remove features of the Software at any time. Unless otherwise specified, CourseAvenue grants Subscriber an unlimited, royalty-free, perpetual license to use Content created by Subscriber. Under no conditions shall Subscriber disassemble, decompile or otherwise alter the Software.
Subscriber agrees that the Software is provided via the Internet, which may be subject to periodic interruptions beyond the control of either party. Subscriber shall be responsible for its own access to the Internet and the interruption of this access or any general Internet outage shall not be considered a failure by CourseAvenue to provide the Software.
CourseAvenue shall make reasonable, commercial efforts to keep the Software on-line and available to Subscriber on a continuous basis. However, continuous availability is not guaranteed and Subscriber agrees that in the course of providing the Software, it will be necessary to perform periodic maintenance both of a planned and unplanned nature that makes the Software unavailable. Whenever possible, CourseAvenue shall restrict its planned maintenance to times outside of "Normal Business Hours" (8:00 a.m. to 5:00 p.m. Central Time weekdays). CourseAvenue agrees to provide Subscriber with as much advance notice as possible of the expected time, duration, and nature of any planned maintenance that makes the Software unavailable.
Subscriber agrees to inform CourseAvenue immediately whenever Subscriber experiences an outage or inability to access the Software. Within four (4) hours of discovering or receiving notice of a performance problem during Normal Business Hours, CourseAvenue will determine and communicate to Subscriber whether the source of the performance problem is limited to the CourseAvenue managed portion of the Subscriber’s environment. CourseAvenue’s sole liability for failure to provide the Software due to a performance problem shall be to credit Subscriber’s account on a pro-rata basis for either a performance problem or those periods that the Software is unavailable to the Internet as follows: unscheduled outages or performance problems lasting more than sixty (60) minutes or any such three (3) outages of any duration in a calendar day shall entitle Subscriber to a credit of 1/365th of the annual fee. Should interruptions occur in any ten (10) consecutive business days, Subscriber shall have the right to terminate this Agreement.
Definition of a "Course" and "Course Unit"
The term "Course" is defined as a single, unique, e-Learning title with a unique Course Identification Number within the CourseAvenue Studio© Software. Each Course is assigned a "Course Unit" value based on the estimated student "seat time" for that Course, rounded up to the nearest 0.5 increment (e.g., a Course with an estimated student seat time between 1 minute and 30 minutes is assigned a Course Unit value of 0.5; a Course with an estimated student seat time between 31 and 60 minutes is assigned a Course Unit value of 1.0, etc.).
Term and Termination
All Software: The initial term of this Agreement will be for one year. At the end of the initial term, this Agreement will automatically renew for a subsequent one-year term and will continue to renew in the same manner at the end of each subsequent term. Either party may terminate this Agreement by providing the other party written notice of termination at least thirty (30) days before the end of a term.
CourseAvenue Studio©: The Subscriber’s Subscription fee for CourseAvenue Studio© during the initial one-year term of this Agreement is based on the number of Course Units the Subscriber purchases at the outset of this Agreement. The Subscriber can purchase additional Course Units at any time. If the Subscriber purchases additional Course Units at any time other than an annual renewal date for this Agreement, then the Subscription fee associated with those additional Course Units will be pro-rated based on the remaining number of days in the current one-year term. The Subscriber’s Subscription fee on each renewal date will be based on the cumulative number of Course Units the Subscriber has purchased through that renewal date.
CourseAvenue Deliver© and CourseAvenue Analyze©: The Subscriber’s Subscription fee for CourseAvenue Deliver© and CourseAvenue Analyze© during the initial one-year term of this Agreement is based on the number of Users the Subscriber selects at the outset of this Agreement. The Subscriber can modify the license to include additional Users at any time. If the Subscriber modifies the number of Users at any time other than an annual renewal date for this Agreement, then the Subscription fee associated with those Users will be pro-rated based on the remaining number of days in the current one-year term. The Subscriber’s Subscription fee on each renewal date will be based on the current number of Users on that renewal date.
Payment
CourseAvenue will first invoice Subscriber for the Software immediately after CourseAvenue receives Subscriber’s completed Agreement. Subscriber agrees that all payments are due "net 30" unless explicitly stated otherwise. CourseAvenue will invoice Subscriber for the renewal of the Software no less than thirty (30) days before the renewal period begins. Unless explicitly stated otherwise, the Subscriber’s Subscription fee for any renewal term will be based on CourseAvenue’s then-current Commercial Price List.
Subscriber is responsible for paying all Subscription fees for the entire Subscription Term regardless of whether Subscriber does or does not use the Software. All amounts paid by Subscriber are nonrefundable and not subject to proration due to the termination of this Agreement. Any fees not received by CourseAvenue when due will bear interest at a rate of 1.5% per month, but not to exceed the highest rate permitted by law. Subscriber agrees that CourseAvenue may suspend the Software, and shall have the right to deny access to and withhold e-Learning assets stored in Subscriber's account, if payment of fees is ten (10) or more business days delinquent. In addition, CourseAvenue is entitled to recover any amounts expended in connection with the collection of fees not paid when due, including reasonable attorneys' fees. CourseAvenue's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber agrees that it is responsible for payment of all such taxes, levies, or duties.
Restrictions
You may not access the Software if you are a direct competitor of CourseAvenue, except with CourseAvenue's prior written consent. In addition, you may not access the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.
Subscriber agrees not to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Software available to any third party other than the users it specifically identifies to use the Software; (ii) modify or make derivative works based on the Software; or (iii) create Internet "links" to the Software, other than the links it provides to the users it specifically identifies to use the Software, or otherwise to "frame" or "mirror" the Software. Subscriber shall not reverse engineer or access the Software in order to (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions or graphics of the Software; or (iii) copy any ideas, features, functions or graphics of the Software.
Subscriber may use the Software for its internal business purposes and shall not: (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children, or be in violation of third party privacy rights; (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (iv) attempt to gain unauthorized access to the Software or its related systems or networks.
Indemnification
Subscriber agrees to release, indemnify, and hold CourseAvenue, its contractors, agents, owners, members, employees, officers, directors, and affiliates harmless from all liabilities, claims, and expenses, including attorney's fees, of third parties relating to or arising under this Agreement, the Software provided hereunder or your use of the Software, including (without limitation) infringement by Subscriber, or someone else using the Software with your computer, of any intellectual property or other proprietary right of any person or entity, or from any damage, infringement, or injury deemed resulting from any Content or materials developed, modified, or distributed with Subscriber's account with CourseAvenue. Should CourseAvenue be threatened with suit by a third party, CourseAvenue may seek written assurances from Subscriber concerning a promise to indemnify CourseAvenue; Subscriber's failure to provide those assurances may be considered by CourseAvenue to be a breach of this Agreement and may result in deactivation of Subscriber's account.
Modification of Terms
CourseAvenue reserves the right to modify the terms and conditions of this Agreement at any time, effective upon posting of an updated version of the terms and conditions on the CourseAvenue website. You are responsible for regularly reviewing this Agreement. Continued use of the Software after any such changes shall constitute your consent to such changes.
Responsibility of Subscriber
Subscriber agrees that Subscriber is solely responsible for the Content developed using Subscriber's account and that use, distribution, or communication of any Content developed by Subscriber is solely at the discretion and risk of Subscriber.
Confidentiality
CourseAvenue acknowledges that Subscriber's Content and e-Learning assets may contain trade secrets, proprietary know-how, or other confidential business information. In the course of providing the Software, CourseAvenue may learn of such information and shall treat Subscriber's Content and e-Learning assets as strictly confidential and as the sole property of Subscriber. CourseAvenue employs modern Internet security measures within the Software to keep Subscriber's Content and e-Learning assets secure from third parties; however, Subscriber acknowledges that no measure is 100% secure.
Limited Warranty
Subscriber agrees that the Software is provided "AS IS" and "AS AVAILABLE." CourseAvenue expressly disclaims all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement. CourseAvenue makes no warranty of representation regarding the Software, any information, materials, goods or services obtained through CourseAvenue's website, or that the Software will meet any Subscriber requirements, or be uninterrupted, timely, secure, or error free. Use of the Software and website are at the Subscriber's sole risk.
Limitation of Liability
To the maximum extent permitted by law, in no event will CourseAvenue, its suppliers or affiliates be liable for any special, incidental, indirect, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of, or resulting from (i) the use of or inability to use the Software or website, or (ii) the provision of or failure to provide support services, or (iii) unauthorized access to or alteration of Subscriber's Content and e-Learning assets. In any case, CourseAvenue's maximum cumulative liability and Subscriber's exclusive remedy for any claims arising out of or related to this Agreement will be limited to the amount actually paid by the Subscriber for the Software in the previous 12 months.
Marketing Permission
Subscriber grants CourseAvenue permission to include Subscriber's name and logo on CourseAvenue’s website and in a general press release. The parties agree that any materials released in the public domain will not disclose information that either party may describe as confidential.
General
The Agreement shall be interpreted under the laws of the State of Illinois. Neither party may assign or delegate their respective obligations under this Agreement either in whole or in part without prior written consent of the other party. Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, the stability or availability of the Internet or portion thereof. These Terms and Conditions survive the termination of the Agreement.