The Step Manager Courseware License Agreement
This Courseware License Agreement (“CLA”) sets forth terms under which you or the business entity you represent (“Licensee”) may access and use any The Step Manager, Inc. (“TSM”) Courseware. By downloading, copying, accessing, or otherwise using the Courseware, Licensee accepts and agrees to be bound by the terms of this CLA. If Licensee does not agree to all of the terms of this CLA, Licensee may not download, copy, access, or otherwise use the Courseware.
Definitions.
“Certified Solid Manager” (“CSM”) means an individual who has satisfied the TSM rules and requirements for CSM certification, is validated to teach Solid Manager courses, and whose certification remains active and in good standing.
“Course” means a Solid Manager training class.
“Courseware” means all materials associated with the Course(s) purchased in the Ordering Documents including slides, student workbooks, instructor materials, trainer guide, toolkits, usage guides, performance tools, and other material that TSM provides to Licensee pursuant to this CLA, including any updates thereto during the Term.
“Learner” means each named individual attending a Course for whom Licensee has purchased a license and is thereby authorized by TSM to use the Courseware student workbooks in accordance with this CLA.
“Ordering Documents” means the sales quotation, purchase order, online transaction, invoice or other document identifying the Courseware procured by Licensee.
“Solid Manager Certification” means the comprehensive managerial training and certification program developed and owned by TSM.
License Grant.
Subject to the terms of this CLA, and conditioned upon Licensee’s payment of all applicable fees, TSM grants Licensee a limited, non-exclusive, non-transferable, non-assignable, revocable license to reproduce, perform, and display the Courseware solely for the purpose of providing Solid Manager Courses to Learners via in-person, instructor-led training performed by a CSM. Licensee may reproduce one (1) copy of the Courseware student workbook(s) for each Learner who attends a Course. This CLA provides Licensee a limited right to sublicense to the CSM(s) delivering a Course (whether employee or contractor), provided that such individuals are bound by the same obligations contained herein.
License Restrictions.
Licensee agrees it will not, nor permit others, to:
a. allow anyone except named Learners for whom Licensee has purchased a license to attend a Course or access any Courseware;
b. store, access, use, copy, modify, create derivative works, sublicense or distribute the Courseware or in any manner that exceeds or violates any limitation set forth in this CLA or Ordering Document, except as expressly permitted herein;
c. rent, lease, loan, sell, transfer, assign, or permit any third party to access or use the Courseware other than as set forth herein;
d. remove, alter, or obscure any copyright, trademark, or other proprietary rights notice in any of the Courseware, or insert any other trademark or copyright into or on any Courseware;
e. make any representation, warranty, guarantee, indemnity, or other commitment, actually or apparently, on behalf of TSM regarding the Courseware or any TSM ideas, techniques, or methodologies; or
f. engage in any disparaging, misleading, or deceptive practices regarding TSM, TSM trademarks, or the Courseware.
Term and Termination.
This CLA will commence on the date specified on the Ordering Document or the date Licensee accesses the Courseware, whichever occurs first, and will remain in effect either (a) through the timeframe specified on the Ordering Document or (b) if no timeframe is specified, until Licensee uses all Courseware licenses purchased (“Term”). Notwithstanding the foregoing, TSM may terminate this CLA immediately upon written notice to Licensee if Licensee breaches this CLA and fails to cure such breach within thirty (30) days of receipt of such notice. Upon termination or expiration of this CLA for any reason all rights and obligations of both parties, including all licenses granted hereunder, will immediately terminate. Upon termination for breach by Licensee, Licensee shall promptly return or destroy the Courseware, including all copies thereof, and, in the case of destruction, certify such destruction.
Learners and Pricing Guidelines.
Only Learners may attend a Course(s). Prior to conducting any Course, Licensee shall purchase licenses for each Learner. In the event Licensee wishes to increase the number of Learners beyond that specified on the Ordering Documents, Licensee shall be required to pay additional fees for the increased number of Learners.
Course Rosters and Audit Rights.
Licensee shall provide Course rosters to TSM via electronic upload within ten (10) days after any Course. Licensee shall ensure that TSM’s Courseware is used only in connection with delivering a Course(s) and only presented to Learners for whom a license has been purchased. TSM will have the right during the Term and for one (1) year thereafter, upon written notice to Licensee, to perform an audit of Licensee’s courseware usage data to verify that Licensee has complied with the terms of this CLA. If an audit reveals a breach, without limiting its other rights, TSM may terminate this CLA immediately with no cure period. If, as a result of any such audit, it is determined that Licensee underpaid TSM, Licensee will promptly pay TSM the underpaid amount with interest as set forth in Section 7, plus the reasonable cost of conducting the audit.
Fees; Payment; Taxes.
Licensee will pay TSM all fees for the Courseware within thirty (30) days of execution of the Ordering Documents or prior to the commencement of the Course(s), whichever occurs earlier. All fees are quoted in, and shall be paid in, U.S. dollars. TSM reserves the right to charge Licensee interest of one and one-half percent (1.5%) per month or the highest legal rate, whichever is lower, on any fees which remain outstanding thirty (30) days beyond the date they are due. Licensee is solely liable for all taxes, including sales, use, duties, excise, and any other taxes with respect to the Courseware (other than taxes based on TSM’s net income). Licensee will pay all fees to TSM free and clear of, and without reduction for, any withholding taxes. Notwithstanding the foregoing, in the event any withholding tax is levied on the fees, Licensee shall increase the sum paid to TSM so the amount received by TSM after the withholding tax is deducted is the full amount TSM would have received if no withholding or reduction had been made.
Proprietary Rights; Trademarks.
TSM retains exclusive right, title, and interest in and to the Courseware licensed under this CLA, including without limitation, any updates or improvements thereto, and all underlying work (“TSM Intellectual Property”). This CLA confers to Licensee no right, title or interest to TSM Intellectual Property other than those expressly granted in Section 2. Both during and after the Term, Licensee shall not use TSM Intellectual Property except as necessary to host and perform Courses. Licensee shall protect all TSM Intellectual Property from unauthorized use with the same degree of care that Licensee uses to protect its own proprietary information, but in no case less than a reasonable degree of care. This CLA grants Licensee no right, license, or interest in or to any TSM trademarks other than the limited right to use according to applicable United States and international law. With the exception of nominal references, Licensee must obtain advance written consent from TSM to use any TSM trademark.
Disclaimer of Warranty.
ALL COURSEWARE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES. SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, TSM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Indemnity.
TSM shall defend or settle at its expense any third party claim or suit against Licensee asserting that the Courseware infringes any intellectual property right of a third party. TSM shall indemnify, defend, and hold Licensee harmless from and against the damages, costs and expenses (including reasonable attorney’s fees), if any, finally awarded in such suit or the amount of the settlement thereof, provided Licensee notifies TSM of the existence of such claim in writing as soon as reasonably possible upon learning of it, and provided TSM is given full authority to control the defense, cost and settlement of the claim. In addition, TSM may, at its sole option and expense, procure the right for Licensee to continue exercising the rights granted hereunder without liability; replace or modify the Courseware so that it becomes non-infringing; or terminate this CLA and refund Licensee for any pre-paid amounts that are unaccrued as of the date of such termination. This Section 10 states TSM’s entire liability, and Licensee’s sole and exclusive remedy, with respect to any third-party assertion of infringement and any claim or action relating thereto.
Limitation of Liability.
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES. WITH THE EXCEPTION OF THE INDEMNITY OBLIGATIONS SET FORTH IN SECTION 10, TSM’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS CLA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE FEES LICENSEE PAID TO TSM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM HEREUNDER.
Data Protection.
To the extent applicable, TSM and Licensee agree to comply with their respective obligations under all applicable data protection laws and regulations.
Compliance with Laws and Regulations.
The parties agree to comply with their respective obligations under all applicable laws and regulations that govern this CLA.
Governing Law and Venue.
This CLA is governed by the laws of the State of Ohio, excluding its conflicts of laws provisions. The parties agree that the exclusive jurisdiction of any suit 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 Youngstown, Ohio. This CLA is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
No Partnership or Agency.
The parties hereto are independent contractors. Nothing herein shall be deemed to constitute a joint venture or partnership or create any employment or fiduciary relationship between the parties. Neither TSM nor Licensee will have any authority to create or assume, in the name or on behalf of the other, any obligation, expressed or implied.
Notice.
All notices and other communications hereunder will be in writing and delivered by personal delivery, by prepaid overnight or courier service to the addresses set forth in the Ordering Documents, or by email (delivery receipt requested) to such email address as may be provided in writing by a party. Notices are deemed given on receipt or attempted delivery (if receipt is refused).
No Additional Terms.
TSM rejects additional or conflicting terms of any Licensee form-purchasing document.
Entire Agreement; Severability.
This CLA and all exhibits constitute the entire agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous oral and written communications. No modifications to the terms of this CLA shall be binding unless specifically agreed to by the parties in writing. Pre-printed terms incorporated in any Licensee order or other business-processing document do not constitute an agreement to modify the terms of this CLA and shall have no effect. If any provision in this CLA is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be modified to be enforceable and consistent with the parties’ intent. 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.
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.
Marketing.
Subject to Licensee’s prior written approval, TSM may publicly list Licensee as a user of the Courseware.
Survival.
Sections 2, 3, 6, 8 through 12, and 14 of this CLA, along with any provision that by its nature should survive, will survive termination or expiration of this CLA.
END OF LICENSE
