IMPORTANT! READ BEFORE BEGINNING THE ON-DEMAND PROJECT MANAGEMENT CERTIFICATE PROGRAM: THE KERZNER APPROACH® TO PROJECT MANAGEMENT EXCELLENCE (“PM CERT ON-DEMAND”) PROGRAM
PM CERT ON-DEMAND™ LICENSE AGREEMENT
INTERNATIONAL INSTITUTE FOR LEARNING, INC. ("LICENSOR") IS WILLING TO LICENSE ITS PM CERT ON-DEMAND APPLICATION TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS CAREFULLY AND BE SURE YOU UNDERSTAND THEM. BY ACCESSING THE PM CERT ON-DEMAND APPLICATION YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, LICENSOR WILL NOT LICENSE THIS APPLICATION TO YOU, AND IN THAT CASE YOU MUST PROMPTLY NOTIFY LICENSOR AND RETURN ALL PASSWORD, USER ID AND ACCESS INFORMATION TO LICENSOR, AT WHICH POINT SUCH ACCESS INFORMATION SHALL BE DISABLED.
THIS LICENSE AGREEMENT ("Agreement") is entered into between:
The end user of the software, (hereinafter referred to as “End User,” “You” or “Licensee”), and;
INTERNATIONAL INSTITUTE FOR LEARNING, INC., a Delaware corporation with a principal place of business at 110 East 59th Street, New York, New York 10022 (hereinafter referred to as “IIL” or "Licensor")
A. The Licensor has developed and owns all rights in the online software program known as PM Cert On-Demand, or is otherwise authorized to grant the rights and provide the services set out in this Agreement.
B. Licensee wishes to use the software program known as PM Cert On-Demand.
C. The Licensor is willing to grant to Licensee a license to enable Licensee to use the software program known as PM Cert On-Demand and to provide associated services to Licensee on the terms and conditions set forth in this Agreement.
1.1 In this Agreement the following terms shall have the meanings set out below unless the context otherwise requires:
Agreement means this agreement, including any schedules or annexes attached to it;
Confidential Information means any information of a commercially sensitive nature supplied by one party to the other, including this Agreement, pursuant to or in connection with this Agreement, whether in writing or orally, including the Licensed Product;
Licensee in addition to the definition provided above, shall include any corporation or entity that Licensee controls, has management rights over or in which any of the above entities holds a controlling interest of the issued share capital or equity.
End User Access Period means the 180-day period following the issuance to the End User of login credentials to the Licensed Product;
Intellectual Property Rights means all copyrights in the Licensed Product in all media now known or hereafter developed and all rights in relation to inventions, whether or not patented, know how, trade secrets and confidential information, registered and unregistered trade marks (including service marks), registered and unregistered designs, circuit layouts, and any other rights arising from intellectual activity in the industrial, scientific, literary and artistic fields in respect of the Licensed Product;
Licensed Product means the software program known as THE ON-DEMAND PROJECT MANAGEMENT CERTIFICATE PROGRAM: THE KERZNER APPROACH® TO PROJECT MANAGEMENT EXCELLENCE (“PM Cert On-Demand”) including any updates and revisions that may be made available to Licensee from time to time in accordance with the provisions of this Agreement;
Update means a release of the Licensed Product made generally available by Licensor to all licensees of the software program known as PM Cert On-Demand that incorporates a resolution of a fault.
1.2 In this Agreement, unless a contrary intention appears:
(a) a reference to the singular includes a reference to the plural, and vice versa;
(b) a reference to a gender includes a reference to the opposite gender;
(c) a reference to a party includes a reference to its authorized employees and its authorized agents; and
(d) headings are inserted for the purpose of convenience only and do not form part of this Agreement.
2. Grant of License
2.1 The Licensor hereby grants to Licensee during the term of this Agreement a non-exclusive, non-transferable, non-sublicenseable worldwide license to use the Licensed Product, as made available to the Licensee.
2.2 Term of License. End User shall be granted access to the Licensed Product for a period of 180 days from the date that such End User is issued with login credentials to the Licensed Product (the “End User Access Period”).
Fees. Subject to the terms and
conditions hereof, Licensee shall pay to Licensor the fee as previously quoted
by Licensor, through the IIL website or otherwise. Payment shall be made by
credit card before access to the Licensed Product is provided.
3.1 Licensee shall not:
(a) copy, reproduce, reverse engineer, decompile, modify, or attempt to modify, or at any time attempt to create software which is similar in functionality or purpose to the Licensed Product; or
(b) sub-license, rent, lease, transfer, sell, assign, publish, transmit or distribute copies of the Licensed Product.
3.2 Licensee shall comply with all applicable laws and regulations concerning the Licensed Product and its use.
3.3 Licensee acknowledges and agrees that all Intellectual Property rights in the Licensed Product are and shall remain the sole and exclusive property of the Licensor.
3.4 The Licensor shall have no responsibility for supplying to Licensee any hardware used in connection with the installation or operation of the Licensed Product.
4.1 EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO THE APPLICATION. This limited warranty gives you specific legal rights.
5. Indemnity and Limitation of Liability
5.1 Neither party shall be liable for any indirect, incidental, special, consequential or any other similar damages arising from the use by any person or organization, of the Licensed Product whether or not he/she or it has been informed of the possibility of such damages in advance, whether based upon lost goodwill, lost profits, loss of use of money, loss of data or interruption in its use or availability, stoppage of work, impairment of assets or otherwise arising out of breach of any express or implied warranty, breach of contract, negligence, misrepresentation, street liability in tort or otherwise, and whether based on any term of this Agreement, any transaction performed or undertaken under or in connection with the Agreement or otherwise.
5.2 The Licensor shall in no way be liable for any damage or loss suffered by Licensee directly or indirectly arising out of a failure by Licensee to use the Licensed Product in the manner recommended by the Licensor and/or contemplated by this Agreement.
5.3 LICENSOR'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT YOUR CHOICE, EITHER (A) RETURN OF THE PRICE PAID OR (B) SUBSTITUTION OF THE LICENSED PRODUCT.
5.4 TO THE EXTENT PERMITTED BY LAW IN NO EVENT WILL LICENSOR BE LIABLE TO YOU OR ANY ONE ELSE FOR DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OR INABILITY TO USE THIS APPLICATION. Licensor makes no guarantee that user will pass or improve their results from any exams nor that user's productivity will improve.
6. Title and Intellectual Property Rights
6.1 The parties agree that the rights granted under this Agreement are limited to the provision of the Licensed Product to Licensee and the use of the Licensed Product by Licensee in accordance with the terms of this Agreement. No title to or proprietary interest in the Licensed Product or any related Intellectual Property Rights is granted to Licensee and Licensee hereby disclaims any such rights.
6.2 Either party shall fully notify the other party as soon as practicable after it becomes aware of:
(a) any actual, threatened or suspected infringement of the Intellectual Property Rights of the Licensor in the Licensed Property; and
(b) any claim brought against Licensee alleging that its use of the Licensed Product infringes the Intellectual Property Rights belonging to or alleged to belong to the claimant.
7. Term & Termination
7.1 This Agreement shall remain in force for the term of the End User Access Period unless earlier terminated in accordance with its terms or as the parties may otherwise agree in writing.
7.2 Either party may terminate this Agreement upon 30-days' prior written notice to the other party in the event of a material breach by such other party of any of its obligations under this Agreement, except that such termination shall not take effect if the breaching party cures such breach before the end of such 30-day notice period. The right to terminate described in this section shall be in addition to any other remedies the non-breaching party may have under the circumstances.
7.3 Either party may terminate this Agreement immediately by giving written notice to the other party if that other party makes an assignment for the benefit of creditors; becomes unable to pay its debts as they become due; dissolves or liquidates or files a voluntary petition in bankruptcy or similar proceeding in accordance with or subject to local law; if an involuntary petition in bankruptcy or a similar proceeding is filed against the other party and is not stayed or dismissed within 30 days of filing; if a receiver is appointed for all or substantially all of that other party's assets; or if execution is made on all or substantially all of that other party's assets.
7.4 Upon the termination of this Agreement Licensee shall forthwith cease to use, either directly or indirectly, the Licensed Property.
8.1 Each party agrees not to disclose the Confidential Information of the other party and to use reasonable and prudent safeguards to prevent such disclosure other than to agents and employees of the receiving party who have a need to know the Confidential Information for purposes of performing under this Agreement and who are informed of and bound to honor the requirements of non-use and non-disclosure imposed by this Agreement. Each party agrees not to use the Confidential Information of the other party except for the benefit of the other party in connection with performing this Agreement. Confidential Information means the proprietary, non-public and trade secret information, including this Agreement, relating to each party’s business that such party designates or treats as confidential, including but not limited to information relating to such party’s research and development, customers, finances, marketing and business plans. Confidentiality shall not include information that:
(i) is already known to the receiving party;
(ii) becomes publicly available without fault of the receiving party;
(iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure;
(iv) is shown by written record to be developed independently by either party without use of the other party’s proprietary information;
(v) is shown by written record to have been known or available to either party without restriction as to disclosure at the time of either party’s receipt of such information; or
(vi) is required to be disclosed by law (provided that prior to such disclosure, the receiving party notifies the disclosing party of the required disclosure in sufficient time to permit the disclosing party to contest such obligation).
8.2 The parties shall ensure that their employees, sub-contractors and agents shall be given access to any Confidential Information received from the other party only on a "need to know" basis for the purposes of this Agreement. Each party shall ensure that any such person is made aware of the requirements of confidentiality concerning any Confidential Information and shall procure their compliance with the terms of this section.
8.3 In the event of disclosure of Confidential Information to a third party in default of this section, the defaulting party shall use all reasonable endeavours to assist the other party in recovering and preventing such third party from using, disseminating, selling or otherwise disposing of such.
9. Force Majeure
9.1 Neither party shall be liable for any delay in meeting or for failure to meet any of its obligations under this Agreement due to, without limitation, strikes, lock-outs, Acts of God, war, terrorism, riot, malicious acts of damage, fire, failure of the electricity supply, acts of any government authority.
9.2 If either party is prevented from meeting any of its obligations due to any cause outside its control, it shall promptly notify the other party in writing of the circumstances and the other party shall grant a reasonable extension for the performance of this Agreement, provided however that if a party shall have been so prevented from meeting its obligations under this Agreement for more than ninety (90) consecutive days, then either party may terminate this Agreement by written notice to the other party.
10.1 All inquiries concerning this License must be sent in writing to: International Institute for Learning, Inc., 110 East 59th Street, New York, New York, 10022-1380
Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party which shall not be unreasonably withheld. Licensee shall be entitled to withhold its consent to assignment under this clause if in its reasonable opinion such assignment will have a material adverse effect on the performance of the Licensor’s obligations under this Agreement, including, but not limited to any obligation to indemnify Licensee.
12.1 Nothing in this Agreement shall create, or be deemed to create, a partnership or relationship of employer and employee or principal and agent between the parties.
12.2 This Agreement contains the entire agreement between the parties in relation to its subject matter and supersedes any previous agreements or representations, written or oral, in this regard.
12.3 The rights and remedies of either party in respect of this Agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time granted by such party to the other nor by any failure of or delay by that party in ascertaining or exercising any such rights or remedies. The waiver by either party of any breach of this Agreement shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
12.4 If at any time any part of this Agreement is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from this Agreement and the validity and/or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired as a result of that omission.
12.5 This Agreement, including any Schedule, may only be amended by the written agreement of the parties.
12.6 The provisions of this Agreement that, by their nature and content, must survive the completion, rescission, termination or expiration of this Agreement in order to achieve the fundamental, intended purposes of this Agreement shall so survive this Agreement and continue to bind the Parties.
13. Governing Law & Jurisdiction
13.1 This Agreement and any dispute arising out of it shall be governed by and construed in accordance with the laws applicable in the State of New York, United States of America, including Section 5-1401 and 5-1402 of the General Obligations Law.