E-Course Licence Agreement
THIS E-COURSE LICENCE AGREEMENT (the “Agreement”) is entered into by and between the parties using the platform, hereinafter referred to as the “Licencee” and 102105113 Saskatchewan Corporation, hereinafter referred to as the “Licensor.”
By accessing or using this platform, the Licencee acknowledges and agrees to the terms and conditions set forth herein. Licencee and Licensor may be referred to in this Agreement collectively as “Parties” or individually as a “Party”.
WHEREAS Licensor is in the business of licensing certain proprietary software for human resources and employment training solutions;
AND WHEREAS Licencee wishes to Licence certain software from the Licensor;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licencee agree as follows:
1. Definitions
The following terms have the meaning ascribed to them in this section:
(a) “Confidential Information” shall have the meaning set out in Section 11.
(b) “Intellectual Property” means all proprietary information, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, Licences, copyrights, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the Licensed Product.
(c) “IP Claim” shall have the meaning set out in Section 9.
(d) “Licensed Data” means all documentation for the Licensed Software, including, without limitation, all specifications as set forth in installation, maintenance, operating and customer manuals.
(e) “Licensed Product” means collectively the Licensed Software and the Licensed Data.
(f) “Licensed Software” means the software identified in Schedule B.
(g) “Limited Warranty” has the meaning set out in Section 7.
(h) “Product Specifications” means the technical and performance functions of the Licensed Software, as specifically set forth in the Product Specifications section of the Licensed Data.
(i) “Permitted Purpose” means the use of the Licensed Product for the sole purpose of fulfilling human resources and employee training needs of the Licencee.
(j) “Source Code” means the plain text, readable computer programming code, associated procedural code, and supporting documentation for the Licensed Product.
(k) “Warranty Period” has the meaning set out in Section 7.
2. Grant of Licence
(a) Subject to the terms of this Agreement, including but not limited to the payment of fees as set out in Section 4, the Licensor hereby grants the Licencee a non-exclusive and non-transferable Licence to use the Licensed Product in Canada in the manner described in this Agreement for a Licence term of one (1) years, commencing on the Effective Date (the “Effective Date”) and expiring 1 year after Effective Date (the “Initial Term”). The Licensor reserves all rights in the Licensed Product. Upon expiration of the Initial Term, the Licencee shall be entitled to renew the Agreement for one (1) additional term in accordance with Section 14.
(b) Licencee must use the Licensed Product only for the Permitted Purpose. All other uses are prohibited. By way of example and without limitation, Licencee may not disassemble, decompile, reverse engineer, or modify the Licensed Software or rent or sublicense the Licensed Product.
(c) Licencee may make up to two copies of the Licensed Software and Licensed Data for backup and archival purposes. All copies of the Software made pursuant to this Agreement shall be true and complete copies and shall include all copyright and trademark notices. Customer shall retain a list of all such copies and shall make such list available to the Licensor on request.
(d) All Intellectual Property in and to the Licensed Product are retained by Licensor. This Agreement is a Licence to use, and not a contract of sale for, the Licensed Product. All Intellectual Property in and to the Licensed Product are retained by Licensor or the licensor of any third-party software as the case may be. Licencee shall not use either the name of Licensor, the licensor of third-party software, or the name of the Licensed Product or third-party software Licensed under this Agreement for any commercial purpose or in any advertising, promotional or public statement without the prior, written consent of Licensor or the licensor of third-party software, which consent shall be at Licensor’s or the licensor of third-party software’s sole discretion. Licencee agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Licensed Software, the Licensed Product, and any Copies thereof in any form.
3. Delivery, Installation and Maintenance
(a) Licensor shall deliver the Licensed Product to the Licencee by providing access to the Licensed Product through Licensor’s Learning Management System or, at the Licencee’s option and subject to Section 6, by sending the Source Code to the Licencee.
(b) Licencee shall be solely responsible for the installation of the Licensed Software.
(c) Licensor is not obligated to provide any maintenance or support services under this Agreement, except as specified in this Agreement. Any such services shall be governed by the terms of a separate agreement.
4. Fees
(a) As compensation for the Licence provided in this Agreement, Licencee shall pay Licensor the fees as set out in Schedule A (“Licence Fee”).
(b) All fees are exclusive of taxes, duties, tariffs, and government charges, including HST. Licencee shall pay all such amounts.
5. Technical Assistance
(a) Technical Assistance. During the term of this Agreement, Licensor shall offer the technical assistance services provided in this Section.
(b) Training. Licensor shall provide Licencee software training and instructions on the operation of the Licensed Product. Initial training shall consist of seven working days, commencing on the first day of the Initial Term and ending seven days therefrom, where the Licencee will be permitted to contact the Licensor during the Licensor’s designated working hours for support. Such initial training shall be at no additional cost to Licencee. Licensor shall provide additional training beyond such initial training at Licensor’s standard rates for such training as agreed upon between the Licencee and Licensor.
(c) Support Services. Licensor’s systems specialists shall provide Licencee with supplemental support for the Licensed Product, including but not limited to: i) virtual workshops hosted by the Licensor; and ii) supplemental learning resources. Such support services shall be provided during Licensor’s regular hours of operation. These support services are subject to additional charges at the hourly rates, and upon the terms and conditions, set in a statement of work entered into by the Parties and made part of this Agreement.
6. Modifications to Licensed Product
(a) Enhancements. Licensor shall provide an Enhancement or Upgrade, if any, at a price established by Licensor, which price shall be consistent with Licensor’s price to other Licencees of similar quantities of the Licensed Software.
(b) Source Code. Licencee is not authorized to access or alter Source Code of the Licensed Product in any manner unless a Source Code Licence to the Licensed Product has been purchased from Licensor. If Licencee obtains access to any Source Code, whether from Licensor or otherwise, Licencee shall treat that Source Code as Confidential Information constituting a trade secret of the Licensor, subject to the restrictions set forth in this Agreement. If the Licencee purchases a Source Code Licence from the Licensor, Licencee is not authorized to grant access to the Source Code of the Licensed Product to any consultant, contractor, agent or third-party of any kind unless such access has been authorized by the Licensor in writing. The Licensor may, among other factors, condition the grant of access to the Source Code to the proposed recipient’s execution and delivery to the Licensor of a non-disclosure and confidentiality agreement in form and content satisfactory to the Licensor, in its sole discretion. Any breach of these terms will be considered a fundamental breach by the Licencee of the conditions set forth in this Agreement, and the Licensor reserves the right to terminate the Agreement without providing any further notice. Any modifications made to the Source Code and Licensed Product at the request of Licencee, whether made by the Licensor, Licencee or an employee, agent or representative of the Licencee under the Source Code Licence, shall be for Licencee’s own internal use only, shall be considered part of the Licensed Product, shall be owned by the Licensor, and shall be subject to the restrictions on the Source Code and Licensed Product, as applicable, provided for in this Agreement.
(b.1) Source Code Licence. Subject to the terms and conditions set out in Section 6(b) and elsewhere in this Agreement, the Licensor shall grant the Licencee the non-exclusive and non-transferrable Licence to use the Source Code solely for the Permitted Purpose. The term of the Source Code Licence shall be co-terminus with the term of this agreement, commencing on the Effective Date and expiring upon the expiration or earlier termination of this Agreement.
7. Limited Warranty and Limitation of Liability
(a) Licensor warrants (the “Limited Warranty”) that the Licensed Software will perform substantially in accordance with the Product Specifications for [3] months after the Effective Date (the “Warranty Period”).
(b) EXCEPT FOR THE LIMITED WARRANTY SPECIFICALLY SET FORTH IN SECTION 7(a), LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS RELATING TO THE LICENSED PRODUCT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
(c) Modification of the Licensed Product not undertaken or performed by Licensor are excluded from the warranty set out in this Section 7.
(d) In the event of breach of the Limited Warranty, Licensor’s entire liability and Licencee’s exclusive remedy will be to exchange the defective Licensed Software.
8. Limitation of Liability
(a) LICENSOR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES OF ANY SORT, EVEN IF LICENSOR HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, (i) ANY DAMAGES FOR LOST PROFITS, OR (ii) ANY DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF DATA.
(b) UNDER NO CIRCUMSTANCE SHALL LICENSOR BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE LICENCE FEES PAID BY LICENCEE FOR THE LICENSED PRODUCT.
(c) NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT, OTHER THAN AN ACTION BY LICENSOR TO COLLECT ANY FEES DUE HEREUNDER, MORE THAN [1] YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
9. Intellectual Property Indemnity
(a) Licensor shall defend or settle, at its own expense, any claim made against Licencee that the Licensed Product, in whole or in part, infringes the intellectual property rights of any third party (an “IP Claim”), and Licensor shall indemnify and hold harmless Licencee against any final judgment, including an award of legal fees, that may be awarded by a court against Licencee as a result of the foregoing; provided, however, Licencee shall (i) give Licensor written notice of the IP Claim within 30 days of the date Licencee first knows or should know of the claim, and (ii) provide Licensor with reasonable cooperation and all information in Licencee’s possession related to the IP Claim. Licensor shall have sole control of the defence of IP Claims and all related settlement negotiations. Reasonable out of pocket expenses incurred by Licencee in aiding Licensor in defence of IP Claims shall be reimbursed by Licensor.
(b) In the event Licencee is enjoined from its use of the Licensed Product as a result of a third-party IP Claim, Licensor, at its sole option, shall either (i) procure for Licencee the right to continue using the Licensed Product, (ii) modify the Licensed Product to make it non-infringing but continue to meet the Product Specifications, or (iii) replace the Licensed Product with equivalent but non-infringing software that meets the Product Specifications.
10. Termination and Default
(a) Licensor may terminate this Agreement and the Licence granted to Licencee upon the occurrence of any of the following events:
(i) Licencee fails to pay Licensor any fee, charge, tax, or other reimbursement when due and the failure to pay is not cured within 10 days of Licencee’s receipt of Licensor’s written notice thereof.
(ii) Licencee purports to transfer the Licensed Product, by any method, including but not limited to, by: 1) duplicating the Licensed Product; and 2) sharing system log in credentials with any unauthorized users, internal or external, without Licensor’s prior written consent.
(iii) Licencee breaches any material obligation of Licencee under this Agreement and such breach is not cured within 30 days of Licencee’s receipt of written notice thereof from Licensor.
(iv) Licencee becomes insolvent, files a voluntary petition in bankruptcy or insolvency or a petition for reorganization under any bankruptcy law, consents to any involuntary petition in bankruptcy or if a receiving order is given against Licencee under any bankruptcy law, or an order, judgment or decree is entered by any court of competent jurisdiction, upon the application of a creditor, receiver, trustee or liquidator of all or a substantial part of Licencee’s assets, and the same has not been discharged or terminated without prejudice to Licensor’s rights under this Agreement within 30 calendar days.
(b) In the event of any termination of this Agreement, Licencee shall cease all further use of the Licensed Product and shall destroy any local copies in Licencee’s possession and Licencee shall pay all outstanding amounts owed to Licensor as of the date of termination.
11. Confidentiality
(a) “Confidential Information” means all information, including, but not limited to, the intellectual property rights, trade secrets and know-how of the respective Parties, any information marked “Confidential” or “Proprietary” and, in the case of Licensor, the Licensed Product, Licensed Data, Licensed Software, and Source Code; provided, however, Confidential Information shall not mean any information that:
(i) is known to the receiving Party at the time of disclosure by the disclosing Party;
(ii) is developed independently by the receiving Party without use of the disclosing Party’s Confidential Information;
(iii) is within, or later falls within, the public domain without breach of this Agreement by the receiving Party; or
(iv) becomes lawfully known or available to the receiving Party without restriction from a source having the lawful right to disclose the information without breach of this Agreement by the receiving Party.
(b) In the event the receiving Party is legally requested or compelled in any form to disclose any of the disclosing Party’s Confidential Information, the receiving Party, unless prohibited by applicable law, shall provide the disclosing Party with prompt written notice of such request, so that the disclosing Party may seek a protective order or pursue other appropriate remedies to protect the confidentiality of its information. If such protective order or other remedy is not obtained, the receiving Party will furnish only that portion of the Confidential Information which the receiving Party, upon the opinion of its counsel, is legally required to furnish. The receiving Party will reasonably assist the disclosing Party in its efforts to obtain a protective order or other remedies to protect or limit the disclosure of the information subject to the request.
(c) Each Party acknowledges that in the performance of this Agreement a Party may receive Confidential Information from a disclosing Party and that such Confidential Information is the exclusive property of the disclosing Party. The receiving Party agrees to hold the Confidential Information of the disclosing Party in strict confidence in accordance with the provisions of this Agreement. A receiving Party shall not disclose any Confidential Information to a third party without the prior written consent of the disclosing Party and shall maintain the Confidential Information of the disclosing Party in a manner no less protective than that used to maintain the confidentiality of the receiving Party’s own Confidential Information.
(d) Return of Confidential Information. Upon any termination of this Agreement, a receiving Party shall, at the option of the disclosing Party (i) surrender and deliver all Confidential Information of the other Party, including all copies thereof; or (ii) destroy the Confidential Information and all copies thereof and provide satisfactory evidence of such destruction to the disclosing Party within 1 month following termination.
12. Representations and Warranties
The Licencee represents and warrants that (a) it is a corporation duly incorporated, duly organized, validly existing, and in good standing and is authorized to do business in each jurisdiction in which it conducts its business; (b) the performance of its duties under this Agreement does not violate any existing obligations or contracts; (c) it has the full legal right, power, and authority to enter into and perform this Agreement and that all requisite corporate and other approvals have been obtained; (d) the individuals signing this Agreement on its behalf are authorized to execute this Agreement and that no further proof of authorization shall be required; and (e) there are no pending or threatened actions or proceedings or government investigations against it that may affect its performance of this Agreement.
13. Intellectual Property Rights
(a) The Licencee acknowledges that the Licencee shall have no rights in or to the Licensed Data other than the right to use the Licensed Data for the Permitted Purpose in accordance with the terms of this Agreement. (b) The Licencee shall not, without the prior written consent of the Licensor, combine the Licensed Data with any other data OR may combine the Licensed Data with the Licencee’s own data provided always that the Licencee shall ensure that the Licensed Data remains identifiable as the data of the Licensor and is only used for the Permitted Purpose. (c) If the Licencee makes any modifications to the Licensed Data, the Licencee shall notify the Licensor and, if requested by the Licensor, shall provide a copy of such modifications to the Licensor. The Licensor reserves the right, at its sole discretion, to refuse any modifications to the Licensed Data, Licensed Software and Source Code.
14. Renewal Term
(a) Provided that the Licencee is not in default under this Agreement, the Licencee shall have the option to renew this Agreement for a period of 1 year (“Renewal Term”) commencing on the day after the expiration of the Initial Term.
(b)The Licencee shall exercise the option to renew by delivering a written notice to the Licensor no earlier than one hundred and twenty (120) days but not later than sixty (60) days prior to the end of the Initial Term.
(c) The Renewal Term will be on the same terms and conditions as set forth herein, except for the option to renew and the Licence fees.
(d) The Licence fees for the Renewal Term shall be determined by mutual agreement between the parties as of the date which is six (6) months prior to the expiry of the Initial Term or, failing such agreement, by arbitration in accordance with applicable arbitration laws of the province of Saskatchewan.
(e) If the parties are unable to agree on the new Licence fees within ninety (90) days, the fees will be established by an arbitrator as provided for in this Agreement.
15. Licensed Product
(a) The Licensor does not warrant that: (i) the Licensed Product is accurate, complete, reliable or fit for the Permitted Purpose; or (ii) the supply of the Licensed Product to the Licencee will be free from interruption.
(b) The Licencee warrants and represents that it shall use the Licensed Product only as expressly set out in this Agreement.
(c) The Licencee shall use all reasonable endeavours to keep the Licensed Product secure and shall employ the best available security measures to protect the Licensed Product.
(d) The Licencee shall (at the Licencee’s expense) promptly inform the Licensor of any unauthorized or accidental access or disclosure, loss of, damage to or destruction of the Licensed Product or any breach of Section 15(c) and shall provide to the Licensor all such information, assistance and co-operation in relation to the same as is required by the Licensor.
(e) The Licencee shall ensure: (i) the reliability and integrity of Permitted Recipients who have access to the Licensed Product and inform them of the confidential nature of the Licensed Product and the Licencee’s obligations in relation to the Licensed Product under this Agreement; and (ii) that access to the Licensed Product is limited to only those Permitted Recipients who need to have access to the Licensed Data for the Permitted Purpose and that such access is restricted to such part(s) of the Licensed Data as is strictly necessary for the Permitted Purpose.
(f) The Licensed Product shall be and remain the property of the Licensor and the Licencee shall not delete or remove any proprietary notices or other notices contained within or relating to the Licensed Product.
(g) The Licencee may make a copy of the Licensed Product for back up and disaster recovery purposes, but may not otherwise copy, store, transfer or use the Licensed Product for any purpose other than as strictly necessary for the Permitted Purpose.
(h) The Licencee shall not do anything unlawful with the Licensed Product or anything which may materially damage the reputation of the Licensor.
(i) At any time on notice, the Licensor shall have the absolute right to require that the Licencee deletes any and all Licensed Product, including, but not limited to, any Source Code, in its possession or control and/or to suspend or withdraw delivery of or access to the Licensed Product where: 1) required to do so by law; 2) in order to correct or remove known or suspected inaccuracies or misleading or offensive material; and 3) upon the expiration or earlier termination of this Agreement.
16. General Provisions
(a) Relationship of the Parties. The Parties, and any employees, contractors, and personnel performing any services on behalf of a Party under this Agreement, are independent contractors and not employees of the other Party.
(b) Assignment/SubLicence. Licencee shall not, directly or indirectly, by operation of law or otherwise, transfer or assign the Licensed Product or this Agreement, or transfer, assign or SubLicence any Licence rights granted hereunder, in whole or in part, without having secured the prior written consent of Licensor, which consent shall be at Licensor’s sole discretion. Any attempted assignment in violation of this Section 16(b) shall be void.
(c) Headings. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference only and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.
(d) Compliance with laws. Each Party shall comply with all applicable laws and regulations in the performance of its obligations under this Agreement.
(e) Severability. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
(f) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
(g) Notices. All notices required to be given pursuant to this Agreement shall be transmitted either by (i) delivery in person; (ii) registered mail; (iii) certified mail, return receipt requested; or (iv) overnight mail, addressed to the Party to be notified at the address set out in the first page of the Agreement.
(h) Entire Agreement. This Agreement, including the Schedules attached hereto and incorporated herein, constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings between them, whether written or oral, between them relating to the subject matter of this Agreement.
(i) Amendment. This Agreement may be amended, modified or supplemented only by a written agreement signed by each Party.
(j) Waiver. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving Party, nor shall any such waiver, if made, constitute a waiver of any subsequent breach of the same or of any other provision of this Agreement.
(k) Jurisdiction and venue. This Agreement shall be governed by and interpreted in accordance with the laws of Calgary, Alberta. Should any claim or controversy arise under the terms of this Agreement or in furtherance of this Agreement, the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of Calgary, Alberta.
Licence Fee Schedule
The Licence Fee shall be in the amount of $29 per licence plus HST per year for a 1+ hour bronze package online course, $15 per licence plus HST per year for a 30-minute bronze package online course and $10 per licence plus HST per year for a micro-learning online course. The Licencee shall pay the full Licence Fee for the Initial Term upfront. The payment shall be made in a single lump sum upon the execution of this Agreement.
The software defined in this contract is an online course designed by W&O Training Solutions to deliver high-quality corporate training in some areas related to Psychological Health and Safety and Occupational Health and Safety. This software serves as a learning solution, equipping organizations with some tools, information and resources needed to foster psychologically safer and healthier workplaces. Online training course(s) will be provided access through W&O Training Solutions’ Learning Management System or, at the Licencee’s option and subject to Section 6, by sending the Source Code to the Licencee.
