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HomeMy WebLinkAboutOnline License and Service Agreement Agreement ID: 1766127 -2 ONLINE LICENSE AND SERVICE AGREEMENT This Online License and Service Agreement ( "Agreement "), is made and entered into this 4th day of November 2010 ( "Effective Date ") by and between Coastal Training Technologies Corporation, a Virginia corporation having offices at 500 Studio Drive, Virginia Beach, Virginia 23452 ( "Coastal ") and CITY OF OSHKOSH, a municipality having offices at 215 Church Ave, PO Box 1130, Oshkosh, WI 54903 be referred to as Company and Party and collectively as Parties. In consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Definitions. "Access" means any access to any Coastal Content, including to a single course by a single Authorized User, regardless of whether the course was completed. "Authorized Users" means employees of Company who Access the system. "Coastal Content" means the data, text, images, sounds, information, software, applications, courses and /or other materials of Coastal as described in Exhibit A located on the Website. "Services" means those services provided to Company by Coastal as set forth on Exhibit A. "Website" means the unique URL reserved for Company of, cityofoshkosh.claritynet.com, through which the Coastal Content may be Accessed. 2. Term and Termination. a) The term of this Agreement shall commence as of the Effective Date and shall continue in full force and effect until 11/30/2011 ( "Expiration Date ") unless and until earlier terminated by either Party as set forth below ( "Term "). Coastal Content and the Website will be available from 12/01/2010 through the Expiration Date. b) Either Party may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within ten (10) days after receipt of written notice of such breach. Any termination hereunder shall not relieve or release either Coastal or Company from any rights, liabilities or obligations that may have accrued under the law or terms of this Agreement prior to the date of such termination. c) Upon termination of this Agreement for any reason, Company shall pay Coastal all fees for the licenses granted and Services performed and all expenses incurred by Coastal in fulfilling its obligations prior to such termination. d) Upon termination or expiration of this Agreement for any reason, Coastal shall disable any Company access to the Coastal Content and Company shall delete and destroy all Coastal Content and shall provide Coastal with a written certification, within thirty (30) days after termination or expiration, that all Coastal Content has been deleted. Company has no right to use Coastal Content after termination or expiration of this Agreement. e) By written mutual agreement between the Parties, the term of this Agreement may be extended beyond the term. 3. License. a) Coastal hereby grants to Company a worldwide, non - exclusive, non - transferable right and license for the number of Accesses and /or Authorized Users set forth on Exhibit A to use Coastal Content to train Authorized Users solely for the benefit of the Company's business during the term of this Agreement for the fees set forth in Exhibit A. Coastal hereby warrants and represents that it is the owner, and has good title to Coastal Content and/or has secured all necessary or appropriate rights and licenses from third party owners of Coastal Content sufficient for Coastal to enter into this Agreement and grant these license rights. b) Coastal will permit Company to have the Company logo appear on the first screen of the Website. c) Company shall not sell, lease, transfer, sublicense, or otherwise make available or permit Access to the Coastal Content, or any portion thereof, to any third party other than Authorized Users. Failure to Page 1 consume the number of Accesses permitted yearly during the term of this Agreement and /or prior to termination of this Agreement will result in those Accesses being forfeited. d) Neither Company nor Authorized Users shall claim any ownership by reason of their use of, or access to, Coastal Content. e) Company will own the data that is collected about the Accesses and /or Authorized Users during the Term. Upon written request given to Coastal thirty days prior to the termination of this Agreement, such data will be provided to Company in a SQL database format within thirty days after the Term. If a timely request is not provided, such data will be deleted by Coastal upon termination of this Agreement. f) Company is solely responsible, at its own expense, for acquiring, installing, and maintaining all equipment, hardware, software, and other equipment as may be necessary for it and its Users to connect to, Access, and use Coastal Content and the Website. 4. Services. During the term of this Agreement, Coastal will provide Company the Services set forth on Exhibit A. 5. Payment. a) As full compensation for the licenses granted and Services provided hereunder, Company shall pay to Coastal the fees set forth in Exhibit A, in U.S. Dollars within 30 days after the date of Coastal's invoice. b) Coastal reserves the right to suspend Access to the Coastal Content and Website in the event any fees payable under this Agreement are more than thirty (30) days past due. c) All payments shall be mailed to: Coastal Training Technologies Corporation Accounts Receivables P.O. Box 2000 Carol Stream, IL 60132 -2000 6. Intellectual Property a) Company recognizes that Coastal Content is copyrighted and subject to applicable copyright, database protections, and other rights of copyright owners and publishers under the laws of the United States and other countries. Company acknowledges that the Coastal Content and Applications is proprietary to Coastal and comprise: (a) works of original authorship, including compiled content containing Coastal selection, arrangement, coordination, and expression of such content or pre- existing material it has created, gathered, or assembled and (b) information that has been created, developed, and maintained by Coastal at great expense of time and money such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm Coastal. b) Company shall not directly or indirectly copy any Coastal Content in whole or in part without the express written consent of Coastal. Company shall not decompile, disassemble, electronically transfer, de- encrypt, or reverse engineer the Coastal Content, or translate the Coastal Content into another computer language. All of Company's rights to use any Coastal Content is expressly stated herein and there are no implied rights. Coastal reserves all rights not expressly granted to Company. c) Company is permitted to modify the Coastal Content using Customease or C3, if included in Exhibit A, and is solely responsible for any content it so creates and for any Coastal Content it modifies. Preexisting materials and materials independently produced by Company which are used to modify Coastal Content are owned by Company. Coastal owns any derivatives of Coastal Content created by Company and Company hereby assigns all right title and interest in any such Derivative Work, as defined in 17 USC Section 101, to Coastal. Coastal will have no right to use the Derivative Work, without the written permission of Company. To the extent Company creates a custom course that does not infringe any Coastal copyright, Company owns the custom course. Any course that infringes a Coastal copyright is considered a Derivative Work and owned by Coastal. 7. Warranty and Liability. a) Coastal warrants that the Coastal Content and Services provided hereunder, unless modified by Company, meet Coastal's standard specifications when licensed and /or performed. EXCEPT AS OTHERWISE SET FORTH HEREIN, COASTAL MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE COASTAL CONTENT OR SERVICES AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Company assumes all risk and liability resulting from use of the Coastal Content and/or Services, or Page 2 information delivered hereunder, whether used singly or in combination with other products, services, or information, as well as for the company content, if any, on the system. b) EXCEPT FOR BREACH OF THE LICENSE SET FORTH IN PARAGRAPH 3 (a — c) OR THE OBLIGATIONS IN RESPECT OF INTELLECTUAL PROPERTY OR CONFIDENTIALITY, IN NO EVENT WILL: (i) EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER FOR ANY DAMAGES ARISING FROM ANY AND ALL CLAIMS RELATED TO THE BREACH OF THIS AGREEMENT, NONDELIVERY, OR THE PROVISION OF ANY COASTAL CONTENT, SERVICE, OR INFORMATION COVERED BY THIS AGREEMENT, REGARDLESS OF WHETHER THE FORM OF ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR OTHERWISE, EXCEED THE TOTAL PRICE PAID BY COMPANY TO COASTAL FOR THE COASTAL CONTENT, SERVICES, OR INFORMATION IN RESPECT OF WHICH DAMAGES ARE CLAIMED, AND (ii) EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISION OF ANY COASTAL CONTENT, SERVICE, OR INFORMATION. 8. Technical Support. Coastal will use commercially reasonable efforts to provide adequate and competent technical support and assistance in English, 24 hours a day, seven days a week, 365 days a year, to enable Company to make use of the Coastal Content; provided that Coastal is permitted reasonable down time for routine and scheduled maintenance. Coastal shall not be responsible for any failure due to an event of force majeure. 9. Confidential Information. a) During the term of this Agreement and for a period of three (3) years after this Agreement expires or is terminated, neither Party shall disclose to, use (except as permitted herein), or permit to be used by any third Party any technical, scientific or business information, or any other information of the other Party, designated in writing as confidential at the time of disclosure, or if disclosed visually and/or orally, designated as confidential at the time of disclosure and confirmed in writing within 30 days after such disclosure (collectively "Confidential Information ") disclosed to, learned by, or developed by either Party, its employees or agents under the Agreement. In addition, each Party shall (i) not use the Confidential Information of the other Party other than to fulfill its obligations under the Agreement; (ii) not allow access to the Confidential Information of the disclosing Party to anyone other than the recipient Party's employees or other permitted contractors, subcontractors, and agents who have agreed in writing: (a) to be bound by confidential obligations consistent with the terms of this Agreement; and (b) to use the Confidential Information solely to provide Coastal Content and /or Services hereunder and for no other purposes; and; (iii) to protect the Confidential Information of the disclosing Party with at least the same level of care as it uses for its own confidential information of a similar nature but not less than a reasonable level of care. Notwithstanding the above, Coastal may share the Company's Confidential Information with such of its Affiliates that have a need to access the same and have agreed to be bound by the confidentiality and non -use obligations imposed by this Agreement. The term "Affiliate" shall mean any entity that controls, is controlled by, or is under common control with a party; where "control" means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) direct or indirect ownership of more than fifty percent (50 %) of the outstanding shares or beneficial ownership of such entity. The Agreement and its terms and conditions are considered Confidential Information. b) These restrictions on use and disclosure shall not apply to Confidential Information: (i) already known to the receiving Party when it was disclosed by the disclosing Party as demonstrated by prior existing records of the receiving Party; (ii) that is or becomes known to the public through no fault of either Party, its employees, or agents; (iii) that is lawfully received by either Party from a third Party where the third Party has not required either Party to maintain the information in confidence; (iv) developed by a Party independently of disclosure by the other Party; and (v) required to be disclosed by court order or otherwise by applicable law. Page 3 10. Miscellaneous. a) Privacy. Company will not provide any personally identifiable information to Coastal. b) Assignment. This Agreement shall not be assignable or otherwise transferable, in whole or in part, by either Party without the prior written consent of the other Party. c) Auditing Rights. Company will submit quarterly usage reports to ensure accurate usage. Company agrees that Coastal has the right to audit course usage for accuracy. If overages of accesses are reported, Company will be invoiced for usage based on the standard pricing at the time of audit. d) Applicable Law and Jurisdiction. The Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law. The Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. The Parties consent and submit exclusively to the jurisdiction and service of process of the courts of the State of Delaware or the courts of the United States located in Delaware. e) Excused Performance. No liability shall result from delay in performance or nonperformance, directly or indirectly caused by circumstances beyond the control of the Party affected, including, but not limited to, act of God, fire, explosion, flood, war, act of or authorized by any Government, accident, labor trouble or shortage, pandemic, inability to obtain material, equipment or transportation, failure of electronic or mechanical equipment, failure of electric power or telecommunications, failure of supplier, failure of internet service provider. The Party experiencing a force majeure shall promptly give notice to the other Party of the occurrence of the force majeure and shall describe the force majeure in reasonable detail. f) Notices. All notices, consents, approvals or requests under the Agreement shall be in writing and shall be deemed given when sent by facsimile machine or mailed (by registered or certified mail, return receipt requested) to the person specified for the receiving Party at the address specified. The initial addressees and addresses for such communications (including electronic mail) are set forth below. For Coastal: Name: Coastal Training Technologies, eLearning Division Address: 500 Studio Drive, Virginia Beach VA 23452 Telephone: 757 - 498 -9014 Facsimile: 757 - 498 -3657 For Company: Name: Paul Greeninger Address: 215 Church Avenue, Oshkosh, WI 54901 Telephone: 920 - 236 -5117 Facsimile: 920 - 236 -5090 E -mail Address: pgreeninger @ci.oshkosh.wi.us g) Entireties. This Agreement, together with Exhibit A, constitutes the entire agreement between the Parties and supersedes any prior communications, on -line or other electronic or written licenses between the Parties with respect to the subject matter hereof. No other terms shall apply. This Agreement may only be amended by a writing signed by both Parties. IN WITNESS WHEREOF, the Parties have caused the Agreement to be executed by their duly authorized representatives as of the Agreement Effective Date. CITY OF OSHKOSH Coastal Training Technologies Corporation By: r C ;t By: Title: Utilities Superintendant Title: '), Date: November 4, 2010 Date: ill ( 2 Page 4 EXHIBIT A Scope of Work Agreement ID: 1766127 -2 Order: Renewal Onyx Number: 1766127 Customer Name: CITY OF OSHKOSH Type of Agreement Needed: Hosted Requested URL: cityofoshkosh.claritynet.com Term of Agreement: 12 months Effective Date: 12/01/2010 Expiration Date: 11/30/2011 Solution Total: Total: $ 4,689.90 Solution Components: Total Number of Authorized Users — 135 Course Titles 1. BACK SAFETY 2. ELECTRICAL SAFETY 3. CONFINED SPACE ENTRY 4. LOCKOUT /TAGOUT 5. RESPIRATORY PROTECTION 6. HAZARD COMMUNICATION IDENTIFYING DANGERS 7. WALKING AND WORKING SURFACES 8. DEFENSIVE DRIVING 9. HEARING PROTECTION: IT MAKES SENSE 10. TRENCHING AND SHORING 11. LAB SAFETY 12. PERSONAL PROTECTIVE EQUIPMENT 13. PERSONAL FALL PROTECTION 14. BLOODBORNE PATHOGENS Support — access to Technical Support resources by email or phone via a toll -free number 365 days per year. Page 5