Last modified on December 3, 2020.
Emtrain® License Agreement
Welcome to Emtrain. This license agreement (the “Agreement”) between Licensee and Emtrain, Inc. (the “Parties”) is dated on the date this Agreement is signed by the last party to sign it (the “Effective Date”).
By subscribing to the Emtrain System (defined below), or by selecting an “I agree” or similarly worded box or button , or otherwise indicating your acceptance of these Terms of Service, you (“Licensee”) agree to be bound by these Terms. If you are accepting these Terms on behalf of a company or other entity, you represent that you have the authority to, and do hereby, bind such entity by these Terms, and references to “Licensee,” “you” or “your” will refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and neither you nor such entity may use the Emtrain System.
The Parties agree as follows:
- The “Emtrain System or System” means the library subscription, Courses (as defined below) and/or products listed on the Order Form, that is specific to this Agreement and is incorporated into this License Agreement and which includes the software hosting platform, web-based applications, digital SCORM files and/or other digital training material, documentation or packaging to be provided to you by Emtrain pursuant to the terms of this Agreement.\
- “Course” or “Lesson” means the proprietary web-based training material developed and owned by Emtrain, including, but not limited to, all hard copy, machine-readable materials that comprise the course, all related images, video and audio recordings, text, software, electronic files, data, documentation or packaging provided by Emtrain, whether hosted by Emtrain or provided in Sharable Content Object Reference Model (“SCORM”) or similar standardized format.
- “Learner” means any individual who is licensed and authorized to use a Course or Lesson, including but not limited to Licensee’s employees, consultants, independent contractors, and non-employees.
- “LMS” (learning management system) means a software application for the administration, documentation, tracking, reporting and delivery of educational courses or training programs, such as Emtrain’s LMS system.
- “Order Form” means the document that incorporates by reference the terms and conditions of this Agreement, describes Licensee’s order-specific information, including, among other things, the number of Learners licensed, and any fees for implementation or customization.
- “Add-on” means an additional System License purchased after this Agreement becomes effective.
2. Grant of License
Subject to the terms of this Agreement and payment of fees, Emtrain grants to Licensee, for the term of this Agreement, a non-exclusive, non-transferable right to use the quantity of system licenses purchased.
Licensee may assign to Learners and Licensee shall be responsible for those Learners’ compliance with the Use Restrictions in Section 7.
After a System license has been assigned to a Learner and/or the Learner has started a Course or Lesson, Licensee shall not reassign that System License to a different Learner until the next one-year term under this Agreement. For a System License already assigned to one Learner, Licensee may assign that License to a different Learner if either (1) a new one-year term has commenced under this Agreement, or (2) the assigned Learner has not started a Course or Lesson.
The terms of this Agreement shall govern any and all Add-ons purchased Licensee during the term of this Agreement.
The license provided by this Agreement for an Add-on expires at the end of the then-current term of this Agreement (a co-terminus end date), unless Licensee purchased the Add-on within thirty (30) days of the next renewal date, in which case the license for the Add-on extends for an additional twelve (12) months following the end of the then-current term of this Agreement.
Unless otherwise extended or terminated in accordance with its terms, this Agreement shall begin on the Effective Date and shall remain in full force and effect for the term specified on the Order Form.
Unless otherwise specified on the Order Form, this Agreement shall automatically renew annually for a new one-year term unless either party notifies the other of cancellation in writing at least thirty (30) days before the end of the then-current Term.
4. Fees and Payment
- Order Placement. Order Forms will be executed and completed digitally, with a confirmation provided by a purchase order, invoice, or other similar documentation that incorporate by reference the terms and conditions of this Agreement. As further described above, an Order Form will also contain usage, business, legal and other terms and conditions specific to Licensee and as mutually agreed to by the Parties.
- Fees, Price Increases, and Invoices. Fees are set forth in the applicable Order. All fees are in United States Dollars and are non-refundable and non-cancellable. Emtrain may increase prices for System Licenses by a maximum of five percent (5%) each renewal period. Emtrain shall send Licensee all invoices via email to the email address indicated in the applicable Order.
- Payment. All payment obligations that are not paid upon execution of the Order are due upon receipt of invoice. Payments shall be made in United States Dollars and are non-refundable and non-cancellable.
- Automated Clearing House Payments. If Licensee so elects, payments shall be paid to Emtrain by Automated Clearing House (“ACH”) debit of immediately available funds from the financial institution account designated by Licensee in an Automated Clearing House debit authorization executed by Licensee, and shall be effective upon receipt. Licensee shall execute any and all forms and documentation necessary from time to time to effectuate such automatic debiting. In no event shall any such payments be refunded to Licensee.
- Automatic Credit Card Payments. If Licensee provides Emtrain with credit card information for Payments, it authorizes Emtrain to initiate recurring charges from the specified credit card. The amount charged to the credit card will be the then current balance on the account.
- Suspension for Non-Payment. If Licensee does not timely pay any amount due to Emtrain, Emtrain may, in its sole discretion, render the Emtrain System inoperable or otherwise deactivate Licensee’s access to the Courses and/or Lessons.
- Past Due Payments. Licensee shall reimburse Emtrain for reasonable collection fees and costs (including reasonable attorneys’ fees) incurred in the collection of any amounts past due under this Agreement that are not made pursuant to a good faith dispute by Licensee, provided that Emtrain (i) provides reasonable prior written notice to Licensee of such failure to pay and (ii) fourteen (14) calendar days have passed after that notice during which Licensee has not cured its failure to pay. Emtrain may require Licensee to pay all outstanding fees in full before Emtrain renders any additional performance and before Emtrain allows Licensee to purchase any additional Course Seats. Any payment not received within 30 days of due date will trigger late charges for the Licensee at the rate of two percent (2%) per month or the maximum amount allowed by law (whichever is less) on all money past due.
- Taxes. Licensee shall be responsible for all sales taxes, use taxes, value added taxes and any other taxes and charges of any kind imposed by any federal, state, or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based solely upon Emtrain’s income.
5. Ownership of Emtrain System, Courses and Lessons
The Emtrain System, Courses, Lessons and derivative content are protected under U.S. copyright law and other intellectual property rights. Emtrain retains title, ownership, and copyrights of the System, Courses and Lessons, including documentation and other content provided to Licensee by Emtrain, including but not limited to Emtrain’s Workplace Color Spectrum® and Emtrain’s Workplace Social Indicators. Emtrain reserves all rights in the Emtrain System not expressly granted to Licensee. This Agreement is not a sale of any Information, Course or Lessons, and Licensee may not sell, rent, lease, lend, sublicense, publish or otherwise distribute copies of any component to Emtrain’s System, Courses, or Lessons to others. Licensee shall not use the Course or Lesson for the benefit of a third party, such as by providing a rental or sharing arrangement, or by making a Course or Lesson available on a “service bureau” basis.
6. Content Modification
Emtrain reserves the right to modify, restrict, or update any content contained in a Course or Lesson throughout the Term of this Agreement. Said modifications or updates, if made, are made to reflect regulatory or legal changes and/or to respond to Learner feedback about questions or content that lacks clarity and can be stated more simply and clearly.
7. Use Restrictions
- Licensee shall not decompile, reverse engineer, or disassemble any component of the Emtrain System, a Course or a Lesson or any components thereof, nor may Licensee use Course or Lesson digital files to create a similar online learning product for either internal or external use.
- If Licensee uses a third-party LMS, Licensee shall include guidance to their LMS vendor to refrain from decompiling, reverse engineering, or disassembling the Course or Lesson files.
- Licensee shall ensure the confidentiality of Course or Lesson files whether they reside on Emtrain’s LMS, a third-party LMS, on Licensee’s own LMS, or otherwise. Licensee shall not place or store any Course or any of components of a Course on a server or other location that is accessible to the public.
- If Emtrain has reason to believe Licensee’s third-party LMS vendor has infringed Emtrain’s copyrighted material, Licensee agrees to support Emtrain’s enforcement of its intellectual property rights.
- Emtrain may terminate this Agreement if Licensee fails to make any payment due hereunder.
- Either party may terminate this Agreement if (i) the other party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, or (ii) if the other party terminates its business activities, becomes insolvent, files a voluntary bankruptcy petition, or makes an assignment for the benefit of creditors.
- Upon termination of this Agreement for any reason, Licensee shall destroy any and all copies of the Course or Lesson written content in Licensee’s possession and provide written assurances to Emtrain, signed by an officer of Licensee, that it has done so.
- Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available.
- Sections 4, 5, 7, 9, 11, 13, 15, 16, 17, 19, 20, 21, 22, 23, and 24 shall survive any expiration or termination of this Agreement.
9. Course/Lesson Access
- Emtrain shall provide Licensee with access to the Courses and/or Lessons upon receipt of full payment of all Fees according to the terms of Licensee’s Order.
- Emtrain may, in its sole discretion, render the Courses inoperable or otherwise deactivate Licensee’s access to the Emtrain System in the event of a material breach by Licensee of any obligations contained herein.
10. System Requirements
In order to use the Courses and/or Emtrain’s LMS, Learners must have hardware and software that meet the minimum system requirements (as modified from time to time) specified at this web page: https://emtrain.com/system-requirements
11. Provisions Specific to SCORM Licensees
- Delivery and Modification of Courses/Lessons for SCORM. If Licensee identifies the LMS on which it will deploy the Courses or Lessons, upon payment per the Order, Emtrain shall deliver the Course or Lesson files to Licensee via FTP for implementation on Licensee’s identified LMS. Emtrain modification of the Course or Lesson files to interface properly with the identified LMS will be billed at $200 per hour after Emtrain has exhausted the standard implementation time that is included and stated in the Order. Licensee shall ensure that its LMS and SCORM standards are up-to-date with the manufacturer’s current version release.
- Invoices for Excess Usage. Emtrain will issue invoices to Licensee, and Licensee shall pay Emtrain, to the extent that Licensee’s Learner usage exceeds the Learner licenses specified on an Order. Emtrain shall invoice for that excess usage at the rate specified in the Order.
- Inspection of Records. Emtrain may, on thirty (30) days prior written notice to Licensee, and not more than once per any twelve-month period (unless reporting issues are identified), inspect Licensee’s records redacted of any personal identifying information as may be reasonably necessary to verify compliance with this Agreement. If an inspection reveals that the total amount payable to Emtrain is a sum greater than the amount specified in the relevant reports, Licensee shall pay the difference within ten days of demand in writing by Emtrain. If the amount payable to Emtrain exceeds the amount specified in any report, then Licensee shall also pay the reasonable and necessary costs and expenses actually incurred by Emtrain for that inspection plus a 10% surcharge on the revised contract total.
- Maintenance of Records. Licensee shall maintain copies of all data and information concerning its training records relating to Courses and Lessons. Licensee shall not delete the records from its LMS of any Learner who has been assigned a Course or Lesson. Licensee’s internal and/or third-party LMS, not Emtrain, is responsible for tracking, recording, and maintaining Licensee’s Learners’ training records and data.
12. Mutual Confidentiality
- During the term of this Agreement each party (a “Receiving Party”) may receive Confidential Information of the other party (a “Disclosing Party”). “Confidential Information” means any trade secrets and other proprietary information of either party, whether in tangible or intangible form, that relate to such party’s research, business operations, customers, employees, products, pricing, financial information, computer programs, designs, models, or operating procedures, other than information that (i) is or becomes public other than by breach of this Agreement, (ii) was in the Receiving Party’s possession prior to the time it was received by such party under this Agreement, or (iii) was rightfully received from a third party on a non-confidential basis.
- During the term of this Agreement and thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in strictest confidence, and shall not disclose it to any person, firm, corporation, or other entity without written authorization of the Disclosing Party.
- Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Information to its employees and contractors to the extent reasonably necessary to allow the Receiving Party to perform its obligations under this Agreement and to obtain the benefits of this Agreement, provided that each such employee or contractor is under an obligation of nondisclosure, which protects the Confidential Information under terms substantially similar to the terms herein.
- Notwithstanding this Section, (a) either party may disclose Confidential Information pursuant to a subpoena or other government demand, provided that it gives the Disclosing Party prompt notice of such demand, and (b) Emtrain may collect, use, and/or publish aggregated data collected from Licensee’s Learners for the purpose of improving Emtrain’s services and products, provided that this data does not identify any individual Learner or Licensee.
Emtrain warrants that Course content complies with all local, state and federal legal requirements for employer Code of Conduct and HR compliance training, including state-mandated harassment training such as California’s AB 1825 and/or Connecticut’s 46A, New York State and City’s harassment training regulation and Illinois’ harassment training mandate, as of the date the Course is provided to Licensee. Emtrain warrants to Licensee that the digital files on which the Course is recorded or captured are free from defects in materials and workmanship under normal use and service. Emtrain warrants that its Course and Lesson files are free from (i) any intentionally injurious instructions or viruses that are designed to modify, damage, delete or disable software or data, or (ii) computer code that permits unauthorized access to the Course by Emtrain or any third party. Emtrain’s entire liability and Licensee’s exclusive remedy for breach of warranty shall be, at Emtrain’s option, either a refund of the fees paid for a particular Course or Lesson or replacement of the Course or Lesson.
14. Disclaimer of Warranties
EMTRAIN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY COURSE, INCLUDING ITS QUALITY, PERFORMANCE, AVAILABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. A COURSE IS LICENSED AND DELIVERED “AS IS.”
LICENSEE SHALL NOT RELY UPON A COURSE TO ASSESS AND/OR ANALYZE ANY SPECIFIC WORKPLACE EMPLOYMENT SITUATION. LICENSEE IS ADVISED TO SEEK LEGAL COUNSEL FOR SPECIFIC WORKPLACE EMPLOYMENT SITUATIONS. EMTRAIN SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM LICENSEE’S RELIANCE ON TRAINING TO ASSESS OR INTERPRET A SPECIFIC WORKPLACE EMPLOYMENT SITUATION.
15. Limitation of Liabilities
NEITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, THE COST OF SUBSTITUTE SERVICES OR OTHER PECUNIARY LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EACH PARTY’S AGGREGATE LIABILITY FOR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL MONIES PAID BY LICENSEE TO EMTRAIN IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE INITIAL NOTICE OF ANY CLAIM HEREUNDER.
THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO INDEMNIFICATION OBLIGATIONS, ANY DAMAGES DUE TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR ANY BREACH OF THE CONFIDENTIALITY, OWNERSHIP, OR USE RESTRICTIONS CONTAINED HEREIN.
- Emtrain shall indemnify, hold harmless and defend Licensee against and from any third-party claims asserted against a Licensee arising out of any claim that a Course or Lesson and/or any related documentation infringes any third party intellectual property right. If a Course or Lesson and/or any associated documentation becomes or is likely to become the subject of any such claim or action, Emtrain shall, at Emtrain’s selection: (i) replace the Course and/or any associated documentation with an equally suitable Course free of infringement; (ii) modify the Course and/or any associated documentation so that it will be free from infringement, provided such modification does not adversely affect the functionality or Licensee’s use of the Course or Lesson and/or any associated documentation; (iii) procure for Licensee’s benefit the right to use the Course and/or any associated documentation as contemplated hereunder; or (iv) accept the return or certify the destruction of the Course or Lesson and/or any associated documentation from Licensee and refund to Licensee pro rata fees for the remainder of the term.
- Licensee shall indemnify, hold harmless and defend Emtrain, its officers, directors, employees and agents from and against all claims, damages, losses and expenses (including reasonable attorneys’ fees) arising out of any claim by any third party to the extent such claim is based on or related to Licensee’s use of the Emtrain System or any of the Courses or Lessons, or Licensee’s violation of these Terms, applicable law or the rights of any third party.
- The Party seeking indemnification hereunder (the “Indemnified Party”) will provide detailed written notice to the indemnifying party promptly after learning of the claim, and the indemnifying party will not be obligated to indemnify to the extent it is materially prejudiced by any delay in such notice. The indemnifying party will have the right to assume control of the defense and settlement of the claim, in which case the Indemnified Party (i) will provide reasonable assistance at the indemnifying party’s reasonable expense and (ii) may employ counsel at its own expense. If a party believes its intellectual property is or may become the subject of a claim of infringement or misappropriation, the party may, at its option and expense, procure for itself and/or the Indemnified Party the right to use the intellectual property, or modify or replace the intellectual property to make it non-infringing and functionally equivalent. If such party concludes that neither of these alternatives is reasonably available, it may require the return or destruction of its intellectual property upon its written request and the termination of these Terms to the extent performance is based upon or involves the use of such intellectual property.
17. Other Business Forms
The terms, provisions or conditions of any invoice, purchase order or other business form or written authorization used by Licensee will have no effect on the rights, duties or obligations of the Parties under this Agreement, regardless of the failure of Emtrain to object to those terms, provisions or conditions. Notwithstanding the foregoing, the Parties may subsequently add more Learner licenses to this Agreement if: (a) Licensee submits an Order Form and/or a usage report to Emtrain for any such additional Learner licenses; (b) any such Order Form and/or usage report specifically references this Agreement and identifies the additional Learner licenses to be included under this Agreement; (c) Emtrain accepts such Order Form and/or usage report by providing such additional Learner licenses; and (d) Licensee pays Emtrain the applicable corresponding fees for such additional Learner licenses.
18. No Assignment
Neither Party may assign this Agreement to any third party, except to its parent company or any majority-owned subsidiaries, without the prior written consent of the other.
If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from this Agreement.
20. Amendment, Modification, and Waiver
No waiver or modification of any provision of this Agreement shall be valid unless in writing and signed by both parties. No waiver of any breach shall be deemed a waiver of any subsequent breach.
21. Jurisdiction and Disputes
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of law principles that require the application of laws of a different state. All disputes hereunder shall be resolved in the applicable state or federal courts in Sacramento or San Francisco, California. The Parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
22. Limitations Period
Regardless of any statute or law to the contrary, any claim or cause of action by Licensee arising out of or related to these Terms or the use of Emtrain’s Solution, must filed or otherwise commenced within one (1) year after such claim or cause of action arose or said claim shall forever be barred.
23. Injunctive Relief
Notwithstanding any other provision hereof, either Party may seek to enforce its rights hereunder with respect to the protection of its confidential information or intellectual property through temporary or permanent injunctive relief, which will be in addition to any other available relief and which will not require a bond or security. Each Party acknowledges that any breach by a Party of its obligations hereunder with respect to the confidential information or intellectual property rights of the other Party might constitute immediate, irreparable harm to such other Party for which monetary damages would be an inadequate remedy.
24. Capacity and Authority
Each Party states that it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and that this Agreement is executed by its duly authorized representative.
25. Entire Agreement
This Agreement constitutes the entire agreement between Emtrain and Licensee with respect to the subject matter hereof, and supersedes any and all prior agreements and understandings, whether written or oral. This Agreement shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict with it.
26. Effectiveness and Date
This Agreement will become effective on the date when all Parties have signed (electronically or otherwise) the corresponding Order Form, which incorporates the entirety of this Agreement.