This Agreement governs Your use of Vivid Learning Systems, Inc.’s (“Vivid”) products and services.
If You are entering into this Agreement on Your own behalf, then the terms “You,” “Your” and “Licensee” mean the individual entering into this Agreement and such individual is personally bound by all of the terms and conditions of this Agreement. If You are entering into this Agreement on behalf of a company, You represent and warrant that You are acting in your capacity as an authorized representative or agent of such company and that You have the authority to bind such company to the terms and conditions of this Agreement. If You are entering into this Agreement on behalf of a company, the terms “You,” “Your” and “Licensee” mean such company and all of its directors, managers, officers, employees, and agents.
You may not access the Training if You are a competitor of Vivid’s (including, but not limited to, any family members, employees or agents of any Vivid competitor) or any other individual or company seeking to create a product or service similar to or competitive with Our Training, except with Our prior written consent. Without limiting the foregoing, this means that you do not, and so long as you use the Training will not, either directly or indirectly, collectively or individually, as principal, agent, manager, employee, partner, shareholder, director, officer, consultant or otherwise become associated or affiliated with, employed by, or financially interested in any business operation that engages in the development or distribution of online compliance training products and services similar to those of Vivid within the USA. In addition, You may not access the Training for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose.
This Agreement was last updated on March 24, 2015. It is effective between You and Us on the date You clicked “I Agree” and signed up for the courses, which are subject to this Agreement.
The following definitions and/or terms shall have the meanings set forth below.
“Delivery Date” means the date you sign up and pay for the courses.
“Training” means the training services, programs, Learning Management System, and content contained on electronic media that have been created by Vivid or which Vivid has the rights to license to others.
“We,” “Us,” “Our,” or “Vivid” means Vivid Learning Systems, Inc., a Washington corporation.
“You,” “Your,” or “Licensee” means the user of the Training if purchased on an individual basis or the company (or other legal entity) for which you are accepting this Agreement.
Vivid is the owner and Licensor of or has rights to license the Training.
- Grant of License
Vivid hereby grants to Licensee a nonexclusive, non-transferable, limited, royalty-free, and fully paid-up license to use the Training for a period of sixty (60) days from the date of signing up and paying for the courses. The Training shall be used for internal training purposes only and cannot be resold, sublicensed, or used for other commercial purposes. The license is for the specified number of users paid for at signup.
Nothing contained in this Agreement shall by express grant, implication, estoppel, or otherwise, create in Licensee any right, title, interest, or license in or to the inventions, patents, trade secrets, technical data, logos, graphics, icons and images, videos, other content, computer software, or software documentation of Vivid or its partners. Vivid or its partners retain exclusive title, copyright, and all intellectual property rights in and to the Training and associated materials and software. Licensee may not create derivative works, decompile, reverse engineer, disassemble, or modify the Training. If You provide any suggestions, feedback, or improvements for the Training, Vivid will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.
- Term of License
The initial term of this license shall begin on the Delivery Date and will continue for sixty (60) days.
Initial license fees must be paid by credit card prior to receiving access to the Training. If You provide credit card information to Us, You authorize Us to charge such credit card for all products and services listed on the registration page.
- Late Fees
If any charge is rejected by Your credit card issuer, then without limiting Our remedies, those charges may accrue late interest of 1.5% per month or the maximum allowable by law, whichever is lower. Vivid reserves the right to suspend Licensee’s access to the Training for any accounts for which any payment is due but unpaid. In addition to any unpaid fees, Licensee shall be responsible for Vivid’s reasonable costs of collection, including but not limited to attorney fees. We may, at our election, choose to forgo the exercise of Our rights under this section to resolve reasonable disputes, without waiving those rights.
Our fees do not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable against Us based on Our income, property, and employees.
- Late Fees
At no additional cost to Licensee, Vivid shall provide Training reasonably maintained to current regulatory standards by providing updates to standard content as regulatory requirements change and by making operating improvements, in each case the timing and necessity of which shall be determined by Vivid in its sole reasonable discretion (“Updates”). Updates may contain, for example, regulatory changes, additional questions added to the “question bank”, and “lessons learned” information gathered during previous years.
- Training and Support
During the term of this Agreement, Vivid shall assist Licensee with the initial setup of the Training via telephone and email support. Vivid shall provide to Licensee telephone and email support and trouble shooting of the Training for the term of this Agreement.
- Limited Warranty; Limitations of Liability
Vivid and any party involved in creating, producing, servicing, updating, or delivering the Training (collectively the Vivid “Related Parties”) shall not in any case be liable for any type of loss or damage arising from the content of the Training, including links to or from Our Training and errors and omissions in the content, and Licensee hereby agrees to hold Vivid and the Related Parties harmless from and against any costs, claims, losses and other liabilities incurred by Licensee based on its use or inability to use the Training whether or not advised of the possibility of such damages. We have made reasonable efforts to present the material accurately given the current information available when the course was created, however, it is not possible or even reasonably practical for all variables posed by on-the-job application of this information to be covered in the Training. Therefore, Licensee acknowledges that it has sole responsibility for ensuring the appropriateness and completeness of the Training as applied to its operational requirements, and to provide adequate training, including safety training, to its staff and others to whom Licensee provides training. Vivid does not warrant that the Training will be uninterrupted, timely, or error free. You are solely responsible for evaluating the fitness of the Training for Your particular purpose. The content provided in Our Training is provided as is without any warranties of any kind including warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property.
The liability of Vivid arising out of any kind of legal claim (including, but not limited to, claims sounding in contract, tort, strict liability, breach of warranty, or otherwise) will not exceed the amount You paid for the Training.
- Indemnity by Vivid
Vivid agrees to indemnify and hold harmless Licensee from any and all liabilities, claims, and expenses including reasonable attorneys’ fees, arising from any third party claims that the Training infringes or misappropriates any presently existing United States patent held by such third party, provided You promptly notify Vivid in writing of any such claim, suit, or proceeding and permit Vivid to control the defense or settlement thereof and cooperate in the defense or settlement thereof. This indemnity shall not apply in the event that You or any of your employees or representatives alter the Training and such alteration is a contributing factor in the alleged infringement or misappropriation.
Vivid will have the option, at its expense, to employ counsel of its choosing to defend against such claim and to compromise, settle, or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon You may be affected without Your prior written consent. You shall have the option to be represented by counsel at Your own expense.
- Indemnity by Licensee
You agree to indemnify and hold harmless Vivid from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees, arising from any breach of this Agreement, any other policy, Your use or access of the Training or any Internet sited linked to or from the Training.
You will have the option, at Your expense, to employ counsel of Your choosing to defend against such claim and to compromise, settle, or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon Vivid may be affected without Our prior written consent. Vivid shall have the option to be represented by counsel at Our own expense.
- Indemnity by Vivid
This Agreement may not be assigned or otherwise transferred by Licensee in whole or in part, by operation of law or otherwise, without the express prior written consent of Vivid, which consent will not unreasonably be withheld. This Agreement shall benefit and be binding upon the successors and assigns of the parties hereto.
If any part, term, or provision of the Agreement shall be held void, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining provisions shall not be affected thereby.
- Choice of Law; Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Washington without regard to its conflicts of laws principles and any action brought to enforce any provision or obligation hereunder shall be brought in a court of competent jurisdiction in or serving Benton or Franklin County, Washington, and You hereby submit to such personal jurisdiction. The substantially prevailing party in any such proceeding shall be entitled to receive from the other party all reasonable attorneys' fees incurred by such prevailing party and all costs reasonably incurred in connection therewith.
- Notification of Changes
Vivid reserves the right to update the terms and conditions in this Agreement without notice and Licensee agrees it is responsible for periodically reviewing such terms and conditions to ensure its ongoing compliance therewith. Vivid will update the “last updated date” at the top of this Agreement. If the changes have a material adverse impact on and are not acceptable to You, then You must notify Vivid within thirty (30) days of the applicable “last updated date.” If Vivid cannot accommodate Your objection, then the prior terms and conditions shall govern You until the expiration of Your then current license. Any subsequent purchases of a Training license will be governed by the terms herein. No term or condition contained in Your purchase order or similar document will apply unless specifically agreed to by Vivid in writing, even if Vivid has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Vivid.
- Force Majeure
Neither party shall be in default by reason of any failure in the performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, third-party computer or telecommunications equipment or software failures, default by subcontractors or suppliers, acts of God or of the public enemy, domestic or foreign governmental acts, labor, fire, flood, epidemic, and/or strikes.
- Independent Contractors
The parties are and will remain independent contractors. Neither party has any authority to act on behalf of the other party or to bind it and in no event will the parties be construed to be partners, employer-employee, or agents of each other.
- Entire Agreement
This Agreement constitutes the entire agreement between Vivid and Licensee with respect to Your use of the Training and the parties acknowledge that they have not relied on any representations outside of this Agreement in deciding to enter into this Agreement. If for any reason a court of competent jurisdiction finds any provision of this Agreement or any portion thereof to be unenforceable that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement and the remainder of this Agreement shall continue in full force and effect. The failure or delay of Vivid to strictly enforce any of the terms and conditions in this Agreement shall not be construed as a waiver of any right to enforce any prior, concurrent, or subsequent defaults.