Digital Content License Agreement
HYLAND SOFTWARE, INC.
This Digital Content License Agreement (“Agreement”) is made and entered into by and between Hyland Software, Inc., 28500 Clemens Road, Westlake, Ohio 44145 USA, an Ohio corporation (“Hyland”), and the person or entity (“User”) that has agreed to the terms of this Agreement with respect to the access, licensing and use of Hyland’s digital content including without limitation the self-hosted education courses (“Course”) with respect to which this Agreement has been presented for acceptance and the related educational, promotional and other materials (“Materials”) made available by Hyland to User in connection with the Course and Hyland’s software solutions. By installing, accessing, copying, or otherwise using the Course or Materials, User agrees to be bound by the terms of this Agreement. If User does not agree to the terms of this Agreement, User must immediately return the Courses or Materials to Hyland.
REPRESENTATION AND WARRANTY REGARDING AUTHORITY: BY CLICKING SUBMIT OR DOWNLOADING ANY MATERIALS, USER REPRESENTS AND WARRANTS THAT THE PERSON THAT HAS CLICKED THE SUBMIT OPTION OR DOWNLOADED THE MATERIALS HAS ALL REQUISITE POWER AND AUTHORITY, FOR AND ON BEHALF OF USER, TO TAKE SUCH ACTION AND TO BIND USER TO SUCH ACCEPTANCE AND TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT OR OTHER TERMS AND CONDITIONS ACCOMPANYING THE COURSE OR MATERIALS.
RECITALS:
WHEREAS, User desires to self-host, license and use the Course andincluded Materials solely for User’s (or, if User is any entity, User’s direct employees who have registered and paid for the Course and included Materials) internal, non-commercial use in educating User or for such other purpose as set forth herein; and
WHEREAS, User understands that Hyland will make no warranties or promises related to the Course and Materials, and that the Course and Materials are licensed under this Agreement without support or maintenance from Hyland;
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF LICENSE: Subject to payment in full of the subscription fee for the Course, Hyland grants to User a limited, royalty-free, non-exclusive, non-assignable, non-transferable, personal and limited license to: (a) host and use (i) one (1) copy of the content of the Course, and (ii) one (1) copy of the Materials, in each case solely for User’s internal, non-commercial use in educating User (or User’s direct employees); and (b) to modify the editable files provided with the Course and documents comprising the User Adoption Kit (as defined herein below) solely as necessary to customize a Course or the User Adoption Kit to reflect User entity’s branding and/or corporate look and feel if User elects to do so. User shall secure the Courses and Materials with login authentication if accessible via the Internet or other remote communications means and will not allow access to the general public or to anyone who is not a direct employee of User.
The term Materials as defined herein shall also include Hyland’s upgrade adoption kit (“Upgrade Adoption Kit”) accessed through Hyland’s training website and which User may utilize to help plan, manage and ensure the adoption of the new version of the Hyland software by User entity’s user community. User shall not make any commercial use of the Courses or Materials or use the Courses or Materials in any other manner not expressly permitted by this Agreement. User shall not make any additional copies of the Courses or Materials. User shall not use the Courses or Materials to provide services to any third party as an outsource service provider, application service provider or otherwise.
User agrees: (a) not to remove any Hyland notices in the Courses or Materials; (b) not to copy, sell, transfer, rent, lease or sublicense the Courses (including related documentation) or Materials to any third party; (c) except as expressly set forth in this Agreement not to alter or modify the Courses or Materials; and (d) not to reverse engineer, disassemble or decompile, or otherwise attempt to derive source code from, the Courses or Materials, or prepare derivative works therefrom except to the extent permitted hereunder.
Title to and all ownership rights in the Courses (and related documentation) and Materials, and all patents, copyrights, trade secrets, and other intellectual property or proprietary rights therein or associated therewith, shall at all times be and remain in Hyland, and User shall not at any time challenge or contest the validity, ownership, title or registration of Hyland in and to the Courses (and related documentation) or Materials, or any and all such intellectual property or proprietary rights, or the validity of the license granted hereunder. User will retain all User existing right, title, and ownership in and to User’s intellectual property and related materials used in connection with the Courses or Upgrade Adoption Kit.
2. LICENSE PERIOD; TERMINATION: The limited license granted hereby for use of the Courses and Materials will terminate: (a) if User has a license to Hyland’s OnBase Software under a written agreement with Hyland, immediately upon any expiration or other termination of such separate written agreement; and (b) at any time that Hyland elects to terminate this Agreement by written notice to such effect to user based upon any breach of this Agreement by User (or any of User’s direct employees). The applicable term of this Agreement and the limited license shall be referred to herein as the “License Period.” User’s non-disclosure and non-use obligations as described in Section 3 below shall survive termination of a limited license or this Agreement for any reason.
3. NON-DISCLOSURE: User agrees to hold in strict confidence, and to take all reasonable steps to avoid publication or disclosure of (except as required by law or court order), Hyland’s confidential information. “Confidential information” shall mean: (a) all information and/or material obtained by User from, or disclosed to User by, Hyland or any of its authorized agents or resellers that relates to Hyland’s past, present, or future business activities and which is clearly labeled or identified in writing to User at the time of disclosure as “Confidential”; (b) the Courses and all related or included software, documentation, software source documents, algorithms, formulae, ideas, techniques, know-how, inventions, product/service specifications, research, experimental work, development, design details, and specifications; and (c) the Materials. User agrees that it will not use any confidential information of Hyland for any purpose not expressly authorized by this Agreement or authorized by Hyland in advance in writing.
4. NO WARRANTY: Hyland makes no representations that the Courses or Materials will perform or conform to any Hyland documentation or statement, either written or verbal. HYLAND MAKES NO WARRANTIES WITH RESPECT TO THE COURSES OR MATERIALS AND PROVIDES THE COURSES AND MATERIALS “AS IS.” User’s sole recourse in the event of any dissatisfaction with the Courses or Materials is to stop using the Courses or Materials.
HYLAND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. HYLAND SHALL HAVE NO LIABILITY FOR ANY WARRANTY, TRAINING OR FOR USE OF THE COURSES OR MATERIALS.
5. LIMITATION OF LIABILITY: IN NO EVENT WILL HYLAND OR ITS DIRECT OR INDIRECT SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR OTHER PECUNIARY LOSS ARISING OUT OF USE OR INABILITY TO USE THE COURSES OR MATERIALS, EVEN IF HYLAND OR SUCH SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. USER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE COURSES AND MATERIALS TO ACHIEVE ITS BUSINESS OBJECTIVES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF HYLAND AND ITS DIRECT AND INDIRECT SUPPLIERS UNDER THIS AGREEMENT OR IN CONNECTION WITH THE COURSES AND THE MATERIALS, OR THE USE OF OR INABILITY TO USE THE SAME, EXCEED THE REGISTRATION FEES ACTUALLY PAID BY USER FOR THE COURSES.
Hyland and its suppliers are not responsible for any costs including, without limitation, loss of business profits, business interruption, loss of business information, the cost of recovering such information, the cost of substitute software or claims by third parties. No oral or written information given by Hyland, its agents or employees shall create any additional warranty. No modification or addition to this warranty is authorized unless it is set forth in writing, references this Agreement, and is signed on behalf of Hyland by a corporate officer.
6. RIGHTS AND OBLIGATIONS OF USER UPON TERMINATION OF LICENSE PERIOD: Upon expiration or other termination of the License Period, User immediately shall discontinue any and all of use of the Courses, the Materials or both (as applicable), and shall remove the Courses, the Materials or both (as applicable) and destroy the Courses, the Materials or both (as applicable) or return the same to Hyland.
7. U.S. GOVERNMENT END USERS: The terms and conditions of this Agreement shall pertain to the Government’s use and/or disclosure of the Courses or Materials, and shall supersede any conflicting contractual terms or conditions. By accepting the terms of this Agreement and/or the delivery of the Courses or Materials, the Government hereby agrees that the Courses and Materials qualify as “commercial” computer software and documentation within the meaning of ALL federal acquisition regulation(s) applicable to this procurement and that the Courses and Materials are developed exclusively at private expense. If this license fails to meet the Government’s needs or is inconsistent in any respect with Federal law, the Government agrees to return the Courses and Materials to Hyland. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display, or disclosure of the Courses or Materials by the Government is subject solely to the terms of this Agreement, as stated in DFARS 227.7202, and the terms of this Agreement shall supersede any conflicting contractual term or conditions.
8. GOVERNING LAW: This Agreement shall be governed by and construed under the laws of the State of Ohio, without regard to the conflicts of laws provisions thereof.
9. EXCLUSIVE VENUE AND JURISDICTION: Any legal action brought concerning this Agreement or any dispute hereunder shall be brought only in the courts of the State of Ohio, in the County of Cuyahoga, or in the federal courts located in such state (and county). Both parties submit to venue and jurisdiction in these courts. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names Hyland as a party, User agrees to initiate, consent to and/or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction named herein, or otherwise take any and all reasonable actions to achieve Hyland’s objectives of this provision.
10. SEVERABILITY: In the event that a court of competent jurisdiction determines that any portion of this Agreement is unenforceable, it shall not affect any other provisions of this Agreement.
11. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement and understanding of the parties and supersedes all prior and contemporaneous agreements, documents, and proposals, oral, or written. This Agreement may be amended or modified only by an agreement in writing signed by each of the parties and may not be modified by course of conduct.
12. NO ASSIGNMENT OR SUBLICENSE BY USER: User may not assign, transfer or sublicense all or part of this Agreement without the prior written consent of Hyland.
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