END-USER LICENSE AGREEMENT FOR INDIVIDUAL USERS

FOR ANY LEARN ECORE ONLINE TRAINING COURSE

This End User License Agreement (this “Agreement”), is a binding agreement made between Mobius Learning, an Indiana company (” Licensor”), and the Person who will be using the Software and/or Documentation subject to the terms and conditions set forth herein (”Licensee”).

Licensor provides the Software solely on the terms and conditions outlined in this Agreement.

THE LICENSEE FULLY ACCEPTS AND COMPLIES WITH THESE TERMS BY CLICKING THE REQUIRED CHECKBOX ON THE CHECKOUT OR CODE REDEMPTION PAGE. By accepting, you:

- Assent to the terms and conditions of this Agreement and agree that, as the Licensee, you are legally bound by its terms and

- Warrant that you are 18 years of age or over or that a parent/guardian has agreed to these terms on your behalf.

No license is granted in any right concerning any software that the licensee did not acquire lawfully or that is not a legitimate, authorized copy of the licensor’s software. If the licensee does not agree to the terms of this Agreement, the Licensor will not license the software to the licensee and the licensee shall not and is prohibited from using, accessing, downloading, copying, enjoying, and/or installing the software and or documentation.

SUMMARY OF KEY TERMS OF THIS LICENSE (Does not include all terms; see Agreement for full details):

1. A license is granted to an individual user, either by their purchase of Software or through a license purchased by the individual’s organization, school, business, or other group.

2. The Licensor has exclusive intellectual property rights in and to the unique content in the Software.

3. The licensee shall only access and use the Software for its intended purposes; not copy, reproduce, modify, translate, or create any other works based on this Software; and not share the Software or any content covered by the Licensor’s intellectual property rights.

4. Licensor warranties that the Software is functioning as intended when used as described in the Agreement. Certain errors that impact functioning will be fixed by the Licensor who will notify the Licensee.

5. Licensor does not warranty Third-party materials contained in the Software or Documentation.

6. The licensor is not responsible for any damages to the Licensee’s hardware or systems resulting from the use or misuse of Licensor Software.

7. The Licensor may audit the Licensee’s use if misuse under this Agreement is suspected.

8. The licensor may terminate the license early for any non-compliance with this Agreement that is not satisfactorily resolved by the Licensee.

9. After a license ends, the Licensee must cease using and destroy copies of Software and Documentation.

10. Payment in full is made when the Software is purchased. Refunds are at the sole discretion of the Licensor.

AGREEMENT

1. License Grant and Scope. Conditioned upon Licensee’s payment of the License Fees, as applicable, and Licensee’s strict compliance with all terms and conditions outlined in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide (subject to the terms and conditions set forth herein), revocable limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as outlined in this Section 2 and subject to all conditions and limitations outlined in this Agreement. This license grants the Licensee the right to:

(a) Access, and use solely for its intended purposes and uses, per the Documentation of one (1) copy of the Software. The licensee hereby acknowledges and agrees that the Software is offered only as Software as a Service (SaaS), and as such shall be hosted and remain on the Licensor’s services and shall be accessible only through those platforms established by the Licensor for purposes of Licensee access. The licensee shall not attempt to download, copy, reproduce, or otherwise create any works derived from the Software.

2. Third-Party Materials. The Software may include Third Party materials, including, but not limited to open-source software, content, data, images, or other materials, including related documentation, that are owned by Third Parties and that are provided to Licensee-on-licensee terms that are in addition to and/or different from those contained in this Agreement (” Third-Party Licenses”). Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by the Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

3. Use Restrictions. The Licensee shall not directly or indirectly:

(a) use (including making any copies of) the Software or Documentation beyond the scope of the license granted under Section 1;

(b) provide any other Person and/or Third Party, including any subcontractor, independent contractor, affiliate, or service provider of the Licensee, with access to or use of the Software or Documentation without the Licensor’s advance written consent.

(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether patentable, of the Software or Documentation or any part thereof.

(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs.

(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof.

(f) remove, delete, alter, blur, tarnish, infringe upon, and/or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof.

(g) except as expressly outlined in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part.

(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, through any electronic or other means including a network, on the Internet, the Cloud or other technology or service.

(i) use the Software or Documentation in violation of any law, regulation, or rule; or

(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.

4. Responsibility for the Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided to Licensee. Specifically, and without limiting the generality of the foregoing, the Licensee is responsible and liable for all actions and failures to take required actions concerning the Software and Documentation, whether such access or use is permitted by or in violation of this Agreement.

5. Compliance Measures

(a) The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3 Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.

(b) During the Term, the Licensor may, in the Licensor’s sole discretion, audit the Licensee’s use of the Software to ensure the Licensee’s compliance with this Agreement, provided that such audits be based on good cause shown. Licensor shall only examine information directly related to the Licensee’s use of the Software and compliance with the terms of this Agreement.

(c) If it is determined that the Licensee’s use of the Software exceeds or exceeds the use permitted by this Agreement, the Licensor has the right the terminate this Agreement and the license granted hereunder, effective immediately upon written notice to the Licensee.
Licensor’s remedies outlined in Section 5(d) are cumulative and are in addition to, not instead of, all other remedies the Licensor may have at law or in equity, under this Agreement or otherwise.

6. Maintenance and Support. Maintenance and support of the Software offered by the Licensor to the Licensee, if any, shall be provided subject to the terms and conditions in this and any separate Agreements entered into by the parties. In general, course documentation includes, but is not limited to, information about hardware and software requirements and how to get technical support.

7. Collection and Use of Information

(a) Licensee hereby acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding the use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:

i. the provision of maintenance and support services; and/or

ii. security measures included in the Software as described in Section 5.

(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:

i. improving the performance of the Software or developing Updates; and

ii. verifying the Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

8. Intellectual Property Rights

(a) The Licensee hereby acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to the Licensee. Licensee shall not and does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same by the limited license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve[s] and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licenses shall use its best efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. The licensee shall promptly notify the Licensor if the Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with the Licensor in any legal action taken by the Licensor to enforce its Intellectual Property Rights.

(b) Licensee shall not in any way oppose, cancel, move to cancel, dispute, or interfere with or attempt to do same with any registration or application to register or otherwise protect any intellectual property right of Licensor, including, but not limited to, any of Licensor’s trademark rights, copyrights, patent rights, trade secret rights or any other proprietary rights.

9. Term and Termination

(a) This Agreement and the license granted hereunder shall remain in effect for one (1) calendar year unless sooner terminated under the terms and conditions set forth herein (the “Term”). Regardless of the reason for such Licensee termination, Licensee’s initial annual fee(s) paid hereunder shall be non-refundable.

(b) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for at least ten (10) days after Licensor provides written notice thereof.

(c) Upon expiration or earlier termination of this Agreement, the limited license granted hereunder shall also terminate, and the Licensee shall cease using and destroy all copies of the Software and Documentation.

10. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.

(a) Solely concerning Software for which Licensor receives a License Fee, Licensor warrants that, for one (1) year after this Agreement becomes effective.

i. any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and

ii. the Software will substantially contain the functionality described in the Documentation, and when properly installed or accessed, as applicable, on a computer meeting the specifications outlined in, and operated by the Documentation, will substantially perform in accordance therewith.

THE FOREGOING WARRANTIES DO NOT APPLY AND THE LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES CONCERNING ANY THIRD-PARTY MATERIALS.

(b) The warranties outlined in Section 10(a)(i) and Section 10(a)(ii) will not apply and will become null and void if the Licensee breaches any material provision of this Agreement, or if the Licensee, any Authorized User, or any other Person provided access to the Software by Licensee or any Authorized User, whether in violation of this Agreement:

I. installs or uses the Software on or in connection with any hardware or software not specified in the Documentation.

II. modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or

III. Misuses the Software, including any use of the Software other than as specified in the Documentation.

(c) If, during the period specified in Section 12(a), any Software covered by the warranty outlined in such Section fails to perform substantially by the Documentation, and such failure is not excluded from warranty under the Section 12(b), Licensor will, subject to licensees promptly notifying Licensor in writing of such failure, repair or replace the Software, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure

If the Licensor repairs or replaces the Software, the warranty will continue to run from the effective date of this Agreement and not from the Licensee’s receipt of the repair or replacement. The remedies outlined in this Section 10(c) are the Licensee’s sole remedies and the Licensor’s sole liability under this Agreement/the limited warranty outlined in Section 10(a).

(d) EXCEPT FOR THE LIMITED WARRANTY outlined in SECTION 10(A), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS BEHALF AND BEHALF OF ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE CONCERNING THE SOFTWARE AND DOCUMENTATION, INCLUDING IMPLIED WARRANTIES OF MECHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE PRACTICE. FURTHERMORE, THE LICENSOR PROVIDES NO WARRANTY AND MAKES NO REPRESENTATION THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR under THIS AGREEMENT IN CONNECTION WITH AND/OR RELATED TO THE SOFTWARE.

(c) THE LIMITATIONS outlined in SECTION 11(A) AND SECTION 11(B) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

12. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefore, Licensee shall receive only those rights concerning the Software and Documentation as are granted to all other end users under license, by (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, concerning the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, concerning all other US Government licensees and their contractors.

13. Miscellaneous.

(a) All matters arising out of or relating to this Agreement shall be governed by and construed by the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Maryland and each party shall submit to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding. Service of process, summons, notice, or other document by electronic mail to such party’s address shall be effective service of process for any proceeding brought in any such court.

(b) The Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder because of any failure or delay in the performance of its obligations where such failure or delay is due to circumstances or causes beyond the Licensor’s reasonable control, such as labor disputes, civil disturbances, epidemic, pandemic, war, terrorist attack, natural disaster, flood, fire, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment.

(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt, (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) (iii) on date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient and on the next business day if sent after normal business hours of recipient (iv) on the 3rd day after the date mailed, by certified or registered mail. Such communications must be sent to the respective parties to such addresses as may be designated by a party.

(d) This Agreement, together with any annexes and schedules, constitutes the sole and entire agreement between Licensee and Licensor concerning the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, concerning such subject matter.

(e) The Licensee shall not assign or otherwise transfer any of its rights under this Agreement, without the Licensor’s prior written consent, which consent the Licensor may give or withhold in its sole discretion. Any purported assignment or transfer in violation of this Section 13(e) is void.

(f) The Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without the Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

(g) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature under or because of this Agreement.

(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, this shall not affect any other term or provision of this Agreement.

KEY DEFINITIONS: For this Agreement, these terms have the following meanings:

” Authorized Users” means those individuals authorized to use the Software under the limited license granted under this Agreement, as mutually agreed to by the parties, the number of such individuals shall not exceed the number of seats granted to the Licensee hereunder.

” Documentation” means user manuals and any other materials provided by the Licensor, in any form, that describe the installation, operation, use, or technical specifications of the Software.

” Intellectual Property Rights” means any registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

” License Fees” means any license fees, including all taxes thereon, paid or required to be paid by the Licensee for the license granted under this Agreement, if any.

” Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

” Software” means the software programs created, developed and owned by Licensor, for which Licensee is purchasing a limited license, subject to the terms and conditions set forth herein.

” Third Party” means any Person other than Licensee or Licensor.