Agreement

NOW, THEREFORE, in consideration for the mutual promises contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Defined Terms. As used in this Agreement, the following capitalized terms have the following meanings. Other capitalized terms have the meanings ascribed to them elsewhere in this Agreement.
(A) “IP Rights” means any and all intellectual property rights relating to the LMS and related technology, as may exist in any jurisdiction throughout the world, including procedures, designs, design rights, inventions, discoveries, know-how, and all patents issued or issuable thereon, all copyrights and other rights in works of authorship, collections and arrangements of data, mask work rights, moral rights, trade secrets, database rights, trademarks, trade names, service marks, logos, and other forms of corporate or product identification, and any division, continuation, modification, enhancement, derivative work or license of any of the foregoing, and all similar rights.
(B) “License Fees” mean the license fees payable to Licensor for access to and use of the LMS, as identified on Schedule 1 attached hereto.
(C) “LMS Documentation” means any technical documentation, user manuals, and other written or electronic materials that relate to the LMS that are provided by Licensor to Licensee, as any of the foregoing may be updated by Licensor from time to time.

2. License and Restrictions
(A) Subject to the terms of this Agreement and any LMS Documentation, including payment of all License Fees, Licensor shall provide Licensee with access to and use of the LMS, and grants to Licensee, for the term of this Agreement, a non-exclusive, non-sublicensable (except as provided below), non-transferable, limited license to access and use the LMS solely to receive training content for Licensee and Licensee’s staff (the “License”). Licensee may make a reasonable number of copies of any applicable LMS Documentation solely for its internal use. 
(B) Licensee shall have the right to provide its agents, employees, and staff (any of the foregoing, a “Licensee End User”) to use the LMS, provided that any such use shall be subject to this Agreement and any LMS Documentation, including payment of all License Fees. Licensee shall be responsible for all acts of Licensee End Users in connection with their use of the LMS.
(C) Licensee’s access to and use of the LMS is limited to the rights expressly granted in this Agreement. Except to the extent expressly permitted under this Agreement, Licensee may not (i) assign, sell, license, sublicense, resell, distribute, or otherwise transfer any of its rights in the LMS to any person or entity; (ii) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the LMS and/or LMS Documentation in any form or media, or attempt any of the foregoing; (iii) attempt to, cause, or permit the reverse engineering, reverse compiling, disassembly or decompilation of the LMS; or (iv) use the LMS for purposes of competitive analysis, the development of a competing software product, or any other purpose that is to Licensor’s commercial disadvantage. Further, Licensee will not use the LMS in any way that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory.
(D) Licensee shall permit Licensor reasonable access upon written notice to any locations at which the LMS is being used by Licensee and any Licensee End Users, and Licensor may from time to time retain at its own expense a third party to investigate, evaluate and otherwise monitor Licensee’s and the Licensee End Users’ use of the LMS to ensure Licensee’s compliance with the terms of this Agreement, including to verify compliance with usage limitations and the payment of License Fees based on the number of Licensee End Users. 

3. Fees and Payment
(A) In consideration for the License provided under this Agreement, Licensee will pay to Licensor the Licensee Fees set forth on Schedule 1. Licensee shall be responsible for any and all taxes and fees imposed by any governmental or regulatory body with respect to the License granted hereunder and Licensee’s use of the LMS. 
(B) License Fees will be considered received by Licensor only when Licensor has fee access to the funds. Receipt of any NSF refusal from Licensee’s bank with respect to any payment will be considered non-payment. Any amounts due hereunder which are unpaid 30 days after the due date for such payment shall accrue interest at the lesser of 1.5% per month or the maximum amount permitted by applicable law. 

4. No Maintenance or Support
(A) Licensor shall be under no obligation to provide any update, modification, enhancement, added functionality, extension, upgrade or new release of the LMS to Licensee (even if the same is offered by Licensor to other agencies, licensee, or third parties), or any maintenance or support services to Licensee with respect to the LMS, other than as described in any LMS Documentation. If Licensor makes any replacements, modifications, or upgrades to the LMS available to Licensee in Licensor’s discretion, any such replaced, modified, or upgraded version will be considered the LMS and will be subject to the terms of this Agreement (unless this Agreement is superseded by a separate license agreement accompanying the replacement, modification, or upgrade). 
(B) Licensee acknowledges that the LMS is designed for use subject to the requirements described in the LMS Documentation, and Licensor assume no responsibility under this Agreement or otherwise for providing any required equipment, systems, or accessories, or otherwise assisting Licensee with the installation, implementation, and/or use of the LMS.

5. Ownership and Protection of LMS and IP Rights
(A) The LMS is licensed, not sold. All IP Rights in and related to the LMS are and will remain the exclusive property of Licensor, whether or not specifically recognized or perfected under local applicable law. Licensor will own all rights in any copies, translations, modifications, alterations, enhancements, updates, adaptations or derivations of the LMS, and any existing or future IP Rights embodied therein. Except for the License expressly set forth in this Agreement, Licensor grants to Licensee no other license or right by implication, estoppel or otherwise with respect to LMS or any other IP Rights, and all such licenses and rights are retained by Licensor. 
(B) Licensee shall at all times recognize the validity of the LMS and Licensor’s rights thereto and the exclusive right and jurisdiction of Licensor to control the use of the LMS and to take all appropriate measures for its protection. Licensee shall not at any time, directly or indirectly, challenge or contest, or take any action or authorize or knowingly permit any action to be taken that may adversely affect, Licensor’s ownership of or the validity of the LMS, or any IP Rights of Licensor therein, and Licensee and its affiliates shall faithfully observe all requirements, procedures and directions of Licensor regarding the use and safeguarding of the LMS. 
(C) Licensee may not remove, alter or destroy any proprietary trademark, copyright, or other IP Rights notices, legends or other markings used in connection with the LMS or any component thereof. All names of Licensor’s products and services used on or in connection with the LMS and any LMS Documentation, including ASNOA and Agent Support Network of America, are trademarks of Licensor and may be registered in certain jurisdictions. Licensee acquires no rights of any kind in or to any trademark, trade name, logo or product designation under which the LMS was or is marketed. 

6. Disclaimer
(A) THE LMS IS PROVIDED ‘AS IS’ AND LICENSOR MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES REGARDING THE LMS OR ANY OTHER MATTER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM TRADE PRACTICE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE LMS WILL BE UNINTERRUPTED OR ERROR-FREE, WILL MEET ALL OF THE NEEDS OF LICENSEE OR WILL BE IN COMPLIANCE WITH ALL LAWS OR REGULATIONS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LMS IS WITH THE LICENSEE AND THE LICENSEE END USERS. 
(B) IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE, ANY LICENSEE END USER, OR ANY THIRD PARTY FOR ANY LOST REVENUE, LOST PROFITS, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF THE LMS OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF PURPOSE OF ANY LIMITED REMEDY. ADDITIONALLY, IN NO EVENT WILL LICENSOR BE RESPONSIBLE FOR LOSS OF DATA OR RECORDS OF LICENSEE, IT BEING UNDERSTOOD THAT LICENSEE AND THE LICENSEE END USERS WILL BE RESPONSIBLE FOR ENSURING PROPER AND ADEQUATE BACKUP AND STORAGE OF THEIR RESPECTIVE DATA. 
(C) In no EVENT WILL LICENSOR’S liability ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE LMS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, exceed the FEES ACTUALLY paid by LICENSEE FOR THE LMS during the six (6) months immediately preceding the event GIVING RISE TO LICENSEE’s CLAIM.
(D) The limitations and disclaimers set forth above are fundamental elements of the basis of this Agreement, and Licensee acknowledges that Licensor would not be able to provide the LMS to Licensee on an economic basis without such limitations. 

7. Indemnification by Licensee. Licensor assumes no liability to Licensee or to third parties with respect to the performance and provision of the LMS, and, to the fullest extent permitted by law, Licensee will indemnify and hold harmless Licensor, its employees and officers, directors, shareholders, members, and agents (collectively, the “Licensor Indemnitees”) from and against any and all actions, suits, claims, demands, liabilities, expense (including attorneys’ fees), losses, damages, penalties and fines of any kind and character, that may be brought or instituted against any Licensor Indemnitee based on or arising out of (a) any acts, whether of omission or commission, that may be committed or suffered by Licensee or any Licensee End User, in connection with this; or (b) any use, sublicense, or transfer of the LMS by Licensee or any Licensee End User that does not comply with the terms of this Agreement.

8. Term and Termination; Effect of Termination; Survival of Certain Terms.
(A) The License shall be in full force and effect for a period of one year from the Effective Date, and thereafter shall automatically renew for successive one-year periods unless terminated by either party by written notice delivered at least 30 days prior to the end of the then-current term.
(B) The License shall be terminable (ii) by Licensee for any reason upon 30 days’ prior written notice; and (ii) by Licensor in the event that Licensee or any Licensee End User breaches or violates any material term of this Agreement, including payment of License Fees, and fails to cure such breach within 30 days of written notice of such breach or violation from Licensor.
(C) Any termination of this Agreement shall extinguish all rights of Licensee with respect to the License, the LMS, and any other IP Rights of Licensor. Upon termination of this Agreement and/or the License for any reason, Licensee shall immediately (i) pay to Licensor all unpaid License Fees accrued through the date of termination; and (ii) discontinue any and all use of the LMS, and remove the LMS from Licensee’s system and confirm such removal in writing to Licensor. Upon termination of the License granted herein, Licensee shall not hold itself out as a former licensee of Licensor.
(D) All provisions of this Agreement that by their nature must survive termination to achieve their fundamental purpose will survive any termination of this Agreement. 

9. Confidentiality
(A) “Confidential Information” means (i) the code of all components of the LMS and the design and architecture thereof, together with any and all notes, memoranda, analyses, studies or other written or electronic material prepared by any person containing or reflecting information regarding the LMS and the design, development, operation, testing or use of the LMS, (ii) all LMS Documentation; (iii) the terms and conditions of this Agreement, and (iv) all other information of a confidential or proprietary nature disclosed by Licensor to Licensee in connection with the LMS or this Agreement that is identified as confidential at the time of the disclosure or is reasonably understood to be confidential in the context of its disclosure. 
(B) Licensee understands and agrees that the LMS and the terms and pricing under this Agreement constitute trade secrets and other proprietary information of Licensor, which are proprietary and confidential and which have substantial commercial value to Licensor. Licensee shall at all times during the term of this Agreement and thereafter: (i) hold Licensor’s Confidential Information in confidence, protecting such information with the same degree of care as Licensee’s own confidential information, but in no case less than reasonable care; (ii) use the Confidential Information of Licensor solely to perform Licensee’s obligations or exercise its rights under this Agreement; and (iii) not transfer, display, convey or otherwise disclose or make available all or any part of the Confidential Information to any third party. Licensee will take reasonable steps to ensure that all Licensee End Users and other employees and agents of Licensee also comply with the confidentiality obligations contained herein, and will be responsible for any breach of this Agreement by such Licensee End Users, employees, and agents. 

10. Miscellaneous
(A) Injunctive Relief. Licensee agrees that any breach of this Agreement may cause Licensor substantial and irreparable damages and therefore, in the event of a breach of this Agreement, Licensor shall be entitled to seek an injunction restraining such breach or threatened breach. Such injunctive relief that Licensor may obtain shall be in addition to all of the rights and remedies available to Licensor under this Agreement at law or in equity. 
(B) Governing Law; Jurisdiction. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF INDIANA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA
(C) Assignment. Licensee shall not assign or transfer (whether directly, by operation of law or otherwise) or delegate any of its rights or obligations under this Agreement without the prior written consent of Licensor. Any such assignment, transfer or delegation shall be void.
(D) Amendment; Waiver. No amendment, modification or waiver of this Agreement shall be valid or binding upon a Party unless made in writing and signed by a duly authorized officer of such Party. The failure of Licensor to strictly enforce any provision of this Agreement shall not be deemed to constitute a waiver of the right to insist on such strict performance and the waiver by Licensor of the breach of any provision of this Agreement by Licensee shall not operate or be construed as a waiver of any subsequent breach by Licensee
(E) Severability. If any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 
(F) Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) references to one gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (v) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. 
(G) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together, shall be and constitute one and the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (including by facsimile or emailed or other electronic signatures) to the other parties. 
(H) Entire Agreement. Each Party has read this Agreement, has had the opportunity to consult with counsel, understands it and agrees to be bound by its terms and conditions. This Agreement contains all of the terms agreed upon by the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties (or their predecessors) dealing with such subject matter, whether oral or written.