BY ACCEPTING AN ORDER FORM OR OTHER AGREEMENT (THE “ORDERING FORM”) THAT INCOPORATES THIS END USER LICENSE AGREEMENT (THE “EULA”), LICENSEE (AS DEFINED THEREIN) AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CO0NDITIONS OF THIS EULA. THE ORDERING FORM AND THE EULA TOGETHER CONSITITUTE THE AGREEMENT OF THE PARTIES AND ARE REFRERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” THE TERMS OF THE ORDERING DOCUMENT SHALL CONTROL OVER ANY CONFLICTING TERMS IN THE EULA.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Licensee and SRG agree as follows:
1. LICENSE RIGHTS
1.1. Scope. This Agreement governs Licensee’s access to and use of certain Licensed Materials (defined below) made available to Licensee by Sales Readiness Group, Inc., a Delaware corporation (“SRG”), with its principal place of business located 8015 SE 28th Street, Suite 200, Mercer Island, Washington 98040.
1.2. Licensed Materials. For purposes of this Agreement, the term “Licensed Materials” shall mean all SRG products as identified on any Ordering Form executed between the parties, which shall be published or otherwise made available by SRG to Licensee under this Agreement.
1.3. Grant of License. Subject to Licensee’s compliance with the terms and conditions of this Agreement, SRG hereby grants to Licensee a non-exclusive, non-transferrable license (without regard to sublicense) for the term set forth in the Ordering Form, to allow the applicable number of Authorized Users to access and use the Licensed Materials for internal training purposes only. Licensee shall have the right to receive any corrections, enhancements or other modifications as commercially available to all SRG customers licensing the same Licensed Materials. For purposes of this Agreement, the term “Authorized Users” shall mean those employees of Licensee that have been identified and designated in writing by the Licensee to access and use the Licensed Materials.
1.4. License Consumption. When an Authorized User has accessed the Licensed Materials by viewing such materials online, such an individual is considered to have consumed a license for the remainder of the then-current Term.
1.5. Ownership of SRG Products. SRG retains all worldwide right, title, and interest in and to all Licensed Materials. All rights not specifically granted under this Agreement are reserved by SRG.
1.6. Unauthorized Use. Licensee shall not and shall ensure that its Authorized Users do not (a) reproduce, publish, distribute, sell, sublicense, transfer, loan, disclose, or otherwise make available the Licensed Materials, or any part thereof, to any third party; (b) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Licensed Materials, or any part thereof; (c) modify, translate, adopt, alter or create derivative works (as defined under the United States copyright laws) based upon the Licensed Materials or any part thereof; (d) remove any proprietary notices, labels, or trademarks or service marks on any Licensed Materials; (e) merge the Licensed Materials or any component thereof with another program; (f) use the Licensed Materials, or any component thereof, for any purpose other than those explicitly stated in this Agreement; or (g) permit any party not specifically licensed herein to use the Licensed Materials. The licensee will take all reasonable steps to ensure compliance of the Authorized Users therewith, and Licensee will be liable and indemnify SRG for any violations of this Agreement by its employees or the Authorized Users.
1.7. Delivery/Access to Licensed Materials. SRG will make the Licensed Materials available to the Licensee in digital form via password-protected online access, accessible by Licensee and the Authorized Users with usernames and passwords provided to Licensee by SRG, or as otherwise mutually agreed by the parties.
The licensee shall pay all fees stated on the Ordering Form (the “Subscription Fee”). Failure to pay the Subscription Fee when due may result in, in SRG’s sole discretion and without notice to the Licensee, (a) restriction or suspension of Licensee’s online access to the Licensed Materials until all past -due payments are made or (b) termination of this Agreement. Restriction or suspension of Licensee’s online access to the Licensed Materials during a period of non-payment shall have no effect on the Term of this Agreement nor Licensee’s obligations to pay the Subscription Fee.
3. TERM & TERMINATION
3.1. Term. The term of this Agreement is specified in the Ordering Document (and, together with all periods of extension, the “Term”).
3.2. Termination. Either party may terminate this Agreement effective immediately, by providing written notice of such election to the other party if the other party breaches any material term of this Agreement (including the non-payment of the Subscription Fee) and fails to cure such breach within thirty (30) days after written notice (and description of the breach) thereof.
3.3. Effect of Termination. Upon expiration or termination of this Agreement, Licensee acknowledges and agrees that the Licensee’s access to the Licensed Materials will be automatically terminated, all passwords and individual accounts will be removed, and all information that has been uploaded into SRG’s systems by Authorized Users may be destroyed.
SRG represents and warrants that it retains clear title and right to license the Licensed Materials and that the Licensed Materials shall not infringe on any copyright, trademark or other intellectual property rights of any third party.
5.1. By SRG. SRG will defend, indemnify and hold harmless Licensee, its affiliates, and the employees, officers, directors, and representatives of each, against and from any claim, liability, damage, loss, and expense (including reasonable attorneys’ fees), arising from any third party claim or action relating to or that is based on a claim that the SRG Program or Licensee’s use thereof as permitted herein, infringes, misappropriates or violates a third party’s intellectual property rights, or as a result of the gross negligence or willful misconduct of SRG.
5.2. By Licensee. Licensee will defend, indemnify and hold harmless SRG, its employees, officers, directors, and representatives, against and from any claim, liability, damage, loss, and expense (including reasonable attorneys’ fees), arising from any third-party claim or action as a result of the gross negligence or willful misconduct of Licensee.
6. LIMITATION OF LIABILITY
NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ON ANY CLAIM UNDER OR RELATING TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT OR IN TORT AND INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL NOT EXCEED THE FEES PAID AND PAYABLE BY HERE TO SRG UNDER THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF THE OTHER PARTY (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OF BUSINESS OPPORTUNITY) ARISING OUT OF THIS AGREEMENT.
7.1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, excluding that body of laws known as conflict of laws.
7.2. Successors and Assigns; Waiver. This Agreement will benefit and bind the successors and assigns of the parties. The waiver of one breach or default under this Agreement will not constitute the waiver of any subsequent breach or default. All waivers must be in writing.
7.3. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
7.4. Notices. The licensee shall provide an email for notices under this Agreement. All notices or other communication permitted or required to be given under this Agreement shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to SRG shall be sent to email@example.com. In the event that Licensee fails to provide an email address for notices, SRG may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.