WHEREAS, Licensor is engage in the business of providing access to online training Software;
WHEREAS, Licensee desires to retain Licensor to perform the services provided for in this Agreement;
NOW, THEREFORE, Licensor and Licensee agree as follows:
1. Grant of License
Subject to the terms and conditions herein, Licensor hereby grants Licensee a nonexclusive license to (i) access and execute Casino Essentials Training Online (the “Software”) on Licensor’s application server over the Internet, and (ii) transmit data related to Licensee’s use of the Software over the Internet.
2. Use and Access
A. Subject to the restrictions on use as set forth herein, Licensee will have access to the Software and Licensor’s application server for the purpose of using the Software for its intended purpose and in accordance with the specifications set forth in any documentation relating to the Software provided by Licensor. Such use and access will be continuous on a 24 hour, 7 days a week basis except for interruptions by reason of maintenance or downtime beyond Licensor’s reasonable control.
B. Licensee may not modify, translate, reverse engineer, decompile or create derivative works based upon the Software. Licensee agrees to use the Software in a manner that complies with all applicable laws including intellectual property and copyright laws. Licensor expressly reserves all rights not expressly granted to Licensee herein.
C. Licensee may not remove, obscure or modify any copyright or other notices included in the Software.
D. Licensee will not: (i) transmit or share identification or password codes to persons other than authorized users (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized, or (iii) permit access to the Software through a single identification or password code being made available to multiple users on a network.
E. Licensee shall use reasonable efforts to ensure that authorized users do not divulge their identification and password codes to any third party. Licensee shall also maintain the confidentiality of any institutional password codes provided by Licensor.
F. Licensee shall use reasonable efforts to protect the Software from any use that is not permitted under this Agreement. In the event of any unauthorized use of the Software by an authorized user, (a) Licensor may terminate such authorized user's access to the Software, (b) Licensor may terminate the access of the Internet Protocol ("IP") address(es) from which such unauthorized use occurred, and/or (c) Licensee shall terminate such authorized user's access to the Software upon Licensor's request. Licensee will cooperate with Licensor to avoid recurrence of any unauthorized use.
3. Price and Payment
A. Licensee will pay Licensor the fees for the license of the Software and access to Licensor’s application server as specified in Exhibit A of this document titled “Casino Essentials Pricing”.
4. Technical Support
Licensor will supply email support regarding the Software to Licensee on a reasonable and necessary basis during normal weekday business hours, not including holidays. Additionally, Licensor will, if necessary, provide reasonable telephone support to Licensee. The support will be rendered to the Licensee’s designated technical support personnel only and is not available to the software end users.
Note: The scope of the technical support is restricted to the functionality of the Software, Casino Essentials Learning Management System and communication to the Licensee’s site. Technical support does not include troubleshooting the Licensee’s hardware or applications that may conflict with the Internet access and system requirements provided in Exhibit B of this document titled “Online Software Requirements”.
5. Term and Termination
A. The initial term of this Agreement will commence the day the Software is accessible via the Internet, (within three business days after payment is received) and will continue as specified in Exhibit A. Thereafter, this Agreement will renew on an annual basis unless either party provides thirty (30) days written notice prior to renewal.
B. Either Party may terminate this agreement for material breach, provided, however, that the terminating party has given the other party at least twenty-one (21) days written notice of and the opportunity to cure the breach. Termination for breach will not preclude the terminating party from exercising any other remedies for breach.
6. Ownership of Intellectual Property
Title to any proprietary rights in the Software or Licensor’s web site will remain in and be the sole and exclusive property of Licensor. Licensor will be the owner of all content created and posted by the Licensor. Licensor reserves the right to withdraw from the Software any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, unlawful or otherwise objectionable. Licensor will provide written notice to the Licensee of such withdrawal no later than thirty (30) days following the removal of any item pursuant to this section.
Licensee acknowledges that the Software and other data on Licensor’s application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to Licensor. Licensee will safeguard the right to access the Software and other software installed on Licensor’s application server using the same standard of care that Licensee uses for its own confidential materials.
8. Limitation of Liability, Indemnification
Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the use of the damages incurred or suffered by the other arising as a result of or related to the use of the Software, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages. Licensee will indemnify and hold Licensor harmless against any claims incurred by Licensor arising out of or in conjunction with Licensee’s breach of this Agreement, as well as all reasonable costs, expenses and attorneys’ fees incurred therein. Licensor’s total liability under this Agreement with respect to the Software, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Licensee to Licensor during the calendar year period immediately preceding the occurrence or act or omission giving rise to the claim.
9. Warranty and Representation
Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Software, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information. Except for the express warranties stated herein, the Software are provided on an "as is" basis, and Licensor disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Software or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Licensor further expressly disclaims any warranty or representation to authorized users, or to any third party.
10. Commercial Purposes
Other than as specifically permitted in this Agreement, Licensee may not use the Software for commercial purposes, including but not limited to the sale of the Software or bulk reproduction or distribution of the Software in any form.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party, and such consent will not be unreasonably withheld. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement, as well as attorney’s fees to the prevailing party. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
14. Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
15. Waiver and Modification
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
16. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.