FlexTraining Software License (cont.)
FlexTraining Software License
National Training Systems Inc. – a Florida Subchapter S Corporation - ("Vendor"), hereby licenses FlexTraining Software and data structures for use on a single web server. Customer agrees to abide by the terms and conditions described in the remainder of this document.
1. Vendor will provide Customer with a fully-functioning set of both FlexTraining Software Modules on CD along with installation documentation:
a. FlexTraining Management Center Module
b. FlexTraining Student Module
2. While covered by a Support agreement, Customer will report any suspected software issues or problems to Vendor for investigation, after sufficient testing by Customer to ensure that its data is defined correctly and the system is set up properly to the best of its knowledge.
3. Software License Fee: Customer will pay a one-time license fee to Vendor, for use of the FlexTraining Software, due before shipment of the product to the Customer. Software includes proprietary methods and source code. All sales are final, regardless of Customer’s internal standards, practices, methods, network architecture, hardware, software or other internal factors at Customer’s facilities.
4. Customer may not resell or re-license the FlexTraining software, nor may it duplicate the software for use by multiple companies or organizations, (though it may sell training classes) at any time under this agreement. Unauthorized duplication or re-sale of the FlexTraining software will be considered a Software License Violation.
5. Customer may continue use of the software indefinitely, or discontinue use at any time. License is non-transferable. Discontinuation of use of the software will not reduce or eliminate any damages due which result from a Software License Violation.
6. FlexTraining Software is licensed for a single web server. This is defined as one computer running a web server and database software with whatever LAN, WAN, Intranet or Internet connectivity that Customer wishes. FlexTraining is designed to run on the Microsoft IIS server, version 5 or newer, under Windows 2000 (Server or Enterprise version) or newer Microsoft IIS server software. FlexTraining runs in cooperation with the Microsoft IIS web server and utilizes software and security methods which are provided by, and part of, the server software and environment.
7. Customer may establish and execute as many Courses, Scheduled Classes, and Reports as it wishes, limited only by the capacity of Customer's hardware and connectivity. The number of Students (student records in the Students table in the FlexTraining database) permitted is governed by the License Type selected by Customer (Express: 250-user, Standard: 1000-user, Enterprise: 5000-user, or Unlimited user license). A second copy of FlexTraining installed on the same machine, or another machine, requires a second license.
8. Customer may build and conduct training for as many of its own customers/clients as it wishes, within the license limits (one machine and one copy of the software). Customer may not reengineer the FlexTraining Management Center module to provide separate Management or Reporting menus for its own customers, or for any other purpose. Failure to ensure a separate license has been purchased from Vendor for each party utilizing its own Management and Reporting functions through a separate menu is a License Violation, causing serious financial harm to Vendor, from which Vendor may recover damages.
9. Customer may elect to modify the FlexTraining software. Vendor is not responsible for supporting the software if modified by Customer. Such a modified / customized version of the software may not be re-sold or licensed elsewhere by Customer. Vendor reserves the right to cancel the Software License Agreement at any time if Customer has committed a license violation.
10. Vendor may provide support beyond the Initial Support Period under an Extended Support agreement. Support and Upgrades agreements may only be purchased at the time of original software license. When a purchased annual Support/Upgrades agreement expires, Customer has 30 days to renew it, Otherwise, Support/Upgrades agreements may no longer be purchased. Instead, Customer may choose to purchase newer version of FlexTraining at discount of 30% from its then current sales price.
11. Upgrading License Type: If Customer has purchased one License Type (for example: an Express license) and wishes to upgrade to another License Type (for example: a Standard License) Customer may do so by paying the difference in the cost for the two license types plus a 30% penalty. From that point forward, Support and Upgrades contracts will be priced based on the new License Type.
12 Except as otherwise provided in this license, Vendor provides, and Customer accepts, the FlexTraining Software in "as-is" condition; and
VENDOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (STATUTORY, EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE FLEXTRAINING SOFTWARE OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, ACCURACY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT VENDOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY
SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. VENDOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE FLEXTRAINING SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE FLEXTRAINING SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. VENDOR EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE FLEXTRAINING SOFTWARE OR ANY PART THEREOF. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS LICENSE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE FLEXTRAINING SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE SUMS RECEIVED BY
VENDOR FROM CUSTOMER UNDER THIS LICENSE IN EXCHANGE FOR THE LICENSE OF THE FLEXTRAINING SOFTWARE. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
In the event that a final injunction shall or in Vendor’s opinion may be obtained against Customer's use of the FlexTraining Software, Vendor may, at its option and expense and without being considered in default in the performance of its obligations under this license, and as Customer's sole remedy against Vendor for such infringement, either (i) procure for Customer the right to continue using such FlexTraining Software; (ii) replace such FlexTraining Software with noninfringing software of like quality and capabilities; or (iii) modify such FlexTraining Software so that it becomes non-infringing.
THE FOREGOING STATES VENDOR’S ENTIRE LIABILITY FOR THE FLEXTRAINING SOFTWARE UNDER THIS LICENSE.
Customer agrees not to disclose to third parties information about the internal design, data structures, or programming techniques of the FlexTraining software.
STANDARDS AND INTEROPERABILITY
FlexTraining is web-based and built on widely-observed standards for online technology, including HTML, SQL, ASP, and HTTP. Within the training industry, there are ongoing attempts to define complex technical mechanisms to communicate between one proprietary product and another. For the sake of simplicity and reliability, FlexTraining manages bookmarks and test results directly within our standard open SQL database. FlexTraining uses a Direct Learner Interface, without additional layers of "SCORM" or "AICC" software, to track user activity and test results. More information is available on the FlexTraining web site at www.flextraining.com.
FlexTraining contains certain features that assist the customer in integrating streaming multimedia based on the "mms" protocol, and the Microsoft ASF and WMV video file formats video content into training courses. Customer understands that:
1. Students attempting to view streaming video content need video/audio capable computers, with sound cards, video cards and video-playing software, and usually need higher-speed connections to successfully view video clips; modems which are 56kbps or less may be inadequate for video/audio reception. Students not using the Internet Explorer web browser may have difficulty properly displaying video/audio content.
2. In any event, Customer is solely responsible for the production and delivery (streaming) of all audio and video content, and the quality and presentation of all video material. Serving streaming video requires, or works best with, "video server" software, utilizing the "mms:" protocol, distinct from web server software which uses the "http" protocol.
3. In any event, and in all circumstances, the liability of National Training Systems Inc. – DBA FlexTraining - concerning any product or service provided to customer will be limited to the amount of fees paid to it by customer. In the case where custom services, such as software modification or course development, are performed, liability concerning those services will be limited to the amount customer pays for those services.
FlexTraining software is shipped with actual source code for both software modules. Customer is entitled to modify code, and customer understands that source code and system functionality are critical trade secrets and proprietary information. As such, all license sales are final.
SUPPORT AND UPGRADES
Support and Upgrades fees are based on the current List Price for the software license and components customer has licensed. Vendor may revise Support and Upgrades fees each year, and future fees may be higher or lower than those currently in use. Upgrades/Support contracts may only be purchased at the time the software is licensed.
Phone and E-mail support is for Software use issues, not including database or network troubleshooting, software code alterations, or assistance with external (non-FlexTraining) software products and tools. Our staff determines best use of e-mail, phone, and other means to resolve support issues. Modification of FlexTraining software by customer is done at your own risk, and modified software cannot be supported.
"Upgrades" refers to upgrades for the FlexTraining software and any optional components purchased. It does not include any other products or tools that Vendor currently offers, or may introduce in the future.
Customer acknowledges that Vendor makes no representation that any specific software tool, feature, or functionality will be included in any future release of the FlexTraining software. Vendor makes no assurances or predictions as to what software, or features will be included in any future release of FlexTraining software.
This license shall be governed in its construction, interpretation and performance by the laws of the State of Florida and the United States, as applicable, without reference to law pertaining to choice of laws or conflict of laws. In the event of any litigation arising out of or relating to this License Agreement or the breach, termination, validity or enforcement of this License Agreement, venue shall be in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, or the Tampa Division of the United States District Court for the Middle District of Florida, as applicable. Both parties hereto hereby submit to the exclusive jurisdiction of such courts.
By: ___________________________ By: _______________________________
Customer - Name National Training Systems – Name
FlexTraining 3418 Handy Rd #201 Tampa FL 33618