DIY PACKAGE END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT is made effective as of the purchase date by and between TalentKeepers, Inc., a Florida corporation, having a place of business at 280 West Canton Avenue, Suite 100, Winter Park, Florida 32789 (“TalentKeepers®) and End User (“End User”) who purchased the Content through TalentKeepers website for use within one (1) organization so named in the purchase process. Purchase of the Content conveys acceptance of this License Agreement.
ATTENTION: This is a license, not a sale. This End User License Agreement and all applicable addendums define what the End User may do with the content provided by TalentKeepers®. This Agreement sets forth the terms and conditions under which TalentKeepers offers such content and this contains limitations on warranties and/or remedies.
1.1 "Confidential Information" means all non-public confidential and proprietary business, financial, and technical information supplied by one party hereunder (the "Disclosing Party") to the other party (the "Receiving Party"), provided that such information is marked as "Confidential" or "Proprietary" if disclosed in tangible form, or, if disclosed orally, is identified as "Confidential" at the time of disclosure and confirmed in writing within thirty (30) days.
1.2 "Content" means all Content files (Word, Excel, PowerPoint, and PDF files) provided to the End User upon purchase of the Content through the TalentKeepers website.
1.3 "Use" means the utilization and display of the Content.
2.1 License Grant. Subject to the restrictions in this Agreement and contingent upon payment of applicable fees, TalentKeepers grants to End User a nonexclusive, nontransferable, non-sub licensable, license to use the Content included in the purchase agreement.
2.2 Purchase Agreement. The products and services TalentKeepers will provide under this Agreement, as well as the payment terms, are defined in TalentKeepers website purchase process.
3.0 License Restrictions
3.1 License Restrictions. End User must limit Use of the Survey Essentials, Creating a Culture of Engagement, and Leader Engagement Effectiveness Packages Content to one (1) organization for which End User has paid the required license fees. End User must limit the use of the Engagement and Retention Leadership Training Series to those individuals for whom they have purchased the Engagement and Retention Leadership Training Series as the Engagement and Retention Leadership Training Series is purchased on an individual user basis.
NOTWITHSTANDING the above, End User agrees not to do, or permit any third party to:
4.1 Trade Secrets Ownership. TalentKeepers® considers the Content as a trade secret and End User shall maintain all Content as a trade secret and shall not disclose such information or permit such information to be disclosed by any person or entity; however this sentence shall not restrict End User in using the Content within the organization for which it was purchased. The Content is the intellectual property, of TalentKeepers® and protected by the United States and International Copyright Laws and International Treaty Provisions.
4.2 TalentKeepers® Ownership. TalentKeepers® retains all right, title and interest in the Content and intellectual property rights to the foregoing (including any and all modifications or add-ons, whether or not made in conjunction with the Agreement), which is and shall remain TalentKeepers® sole and exclusive property. The Content is the intellectual property of TalentKeepers® and protected by the United States and International Copyright Laws and International Treaty Provisions. TalentKeepers® reserves all rights not expressly granted to End User in this Agreement, and the license granted to End User herein shall in no event be construed as conferring a license to, or rights in, any TalentKeepers® copyright or patent. TalentKeepers® agrees that it will not assert any of its rights under such patents against End User based upon proper exercise by End User of the licenses granted to End User in this Agreement. TalentKeepers® reserves all rights not expressly granted to End User in this Agreement.
5.1 TalentKeepers® Indemnity. TalentKeepers® shall defend, indemnify and hold End User harmless from and will defend against any third party claims that the Content (a) infringes any copyright, (b) misappropriates any trade secret, (c) infringes any U.S. patent, (d) is deceptive, defamatory, obscene, pornographic, or unlawful, or I contains any viruses, worms, or other malicious computer programming codes intended by TalentKeepers® to damage a User’s system or data; provided, End User (a) gives TalentKeepers® prompt notice of any actual or threatened claim of such infringement or misappropriation, (b) gives control of the defense of such claims to TalentKeepers® and (c) cooperates fully, at TalentKeepers® expense, with TalentKeepers® and its counsel in the defense or settlement of such claims. TalentKeepers® obligation shall not extend to a claim based on any alleged infringement arising from (i) additions, changes or modifications to the Content by or on behalf of End User, (ii) any incorporation of the Content or any component thereof into any other product or process, (iii) use of the Content other than as permitted by this Agreement.
6.0 Limited Liability
6.1 Limited Liability. In no event shall TalentKeepers® be liable for any consequential, incidental, or special damages whatsoever (including without limitation, damages for loss of profits, business interruption, loss of formation, or other pecuniary loss). TalentKeepers® aggregate cumulative liability, whether in contract or tort otherwise, will not exceed the amount of fees payable to TalentKeepers® hereunder.
7.0 Marketing and Promotion
7.1 Marketing and Promotion. End User shall have the right to market and promote TalentKeepers® and its Content within its organization through any means, both electronic and print, for the purpose of encouraging participation and involvement. Use of TalentKeepers® marks (i.e., trademarks), designs, product names, images, models and other copyrighted materials must be approved by TalentKeepers® prior to use.
8.0 Term and Termination
8.1 Term. The term of this Agreement shall commence upon the effective date and continue in perpetuity for the Survey Essentials, Creating a Culture of Engagement, and Leader Engagement Effectiveness Packages. The term of this Agreement shall commence upon the effective date and continue for one (1) year for the Engagement and Retention Leadership Training Series.
8.2 Termination. TalentKeepers® may terminate this Agreement, in whole or in part, and the licenses granted hereunder, effective immediately upon written notice to End User, if End User breaches any material provision of this License and does not cure such breach within ten (10) days after receiving written notice thereof from TalentKeepers®.
8.3 Effect of Termination. Upon termination, any amounts owed to either party under this Agreement before such termination will be due and payable within thirty (30) days, all licenses granted hereunder shall immediately cease and End User must promptly discontinue all use of the Content, destroy all copies of the Content in its possession and certify in writing to TalentKeepers® that it has complied with the above.
9.1 Injunctive Relief. Each party acknowledges that the other party will have no adequate remedy at law if such party breaches any provision concerning confidential information, and that the non-breaching party shall have the right, in addition to any other rights it may have, to obtain, in any court of competent jurisdiction, injunctive relief to restrain any such breach or threatened breach.
9.2 Attorneys’ Fees and Venue. If any litigation occurs between the parties with respect to this Agreement, the prevailing party or parties shall be entitled to receive reimbursement of the reasonable attorneys’ fees, expert fees, and court costs incurred by such party or parties in the litigation. Each party hereto consents to the personal jurisdiction and venue of the federal and state courts with jurisdiction in Orange County, Florida, for a resolution of all disputes arising out of the construction, interpretation, or enforcement of any term or provision of this Agreement, and each party hereby waives the claim or defense that such courts constitute an inconvenient forum.
9.3 Severability. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. If any provision of this Agreement shall be declared so broad as to be invalid or unenforceable, such provision shall be interpreted to be only so broad as is necessary for it to be valid or enforceable.
9.4 Survival. The terms and conditions contained in this Agreement that by their sense and context are intended to survive the termination of this Agreement, including, but not limited to, indemnities and limitations of liability, shall survive termination.
9.5 Waiver. No waiver of any rights under this Agreement or default hereunder will be valid or effective unless in writing signed by the party against whom enforcement of such waiver is sought. Any waiver by either party of a breach of any provision of this Agreement or default hereunder shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement or any other default hereunder. The failure of either party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or to deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
9.6 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same document.
9.7 No Joint Venture. Nothing contained in this Agreement shall be construed to place the parties in the relationship of partners or joint ventures, or principal and agent or employer and employee, and no party shall have the power to obligate or bind the other party in any manner whatsoever.
9.8 Headings. The headings included in this Agreement are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
9.9 Amendments. This Agreement may be modified, amended, superseded or terminated only by a writing duly signed by authorized representatives of both parties.