BY AGREEING TO A DOCUMENT INCORPORATING THESE MAPLELMS LICENSE TERMS AND CONDITIONS (“THE TERMS”) (AN “ORDERING DOCUMENT”) MAPLELMS AND CLIENT AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY MAPLELMS PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO CLIENT AS SET FORTH IN SUCH ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
1.Use of Services
- Grant of Rights. On the terms and conditions of this Agreement and the Order Form(s), MapleLMS grants Client a limited, non-exclusive, non-transferable right to access and use the Services, Software, and Documentation identified in the Order Form during the Term in accordance with this Agreement and the Documentation solely for Client’s personal, business and/or professional purposes. This Agreement shall apply to and govern each event that Client hosts utilizing the Services and/or Software. MapleLMS reserves the right to place Powered by MapleLMS® at the bottom of the web templates, mobile apps, mobile pages, and discussion messages, provided that such placement shall be unobtrusive. “Documentation” means, with respect to any particular Software and Services, any applicable standard end user specifications and/or operating instructions provided by MapleLMS for such Software and Services, which may be amended from time to time. Documentation does not include any sales or marketing materials. “Software” shall mean the computer programs specified in the Order Form and all related files and Documentation, or any portion thereof, as may be amended from time to time and provided or made available by MapleLMS to the Client or Client’s Authorized Users under the terms of this Agreement.
- Terms of Order Form. The terms of the Order Form(s) entered into by MapleLMS and Client contemporaneous with this Agreement are incorporated by reference and form an integral part of the agreement between MapleLMS and the Client. The Order Form shall provide the details of Client’s use of the Services, Software, and Documentation, including but not limited to: a description of the Services; date(s) if applicable; number of authorized users; and pricing. MapleLMS and Client may enter into multiple Order Forms over time for additional services and each Order Form will be incorporated into and subject to the terms and conditions of this Agreement. In the event Client permits more individuals to access or utilize the Services or Software than is identified in the applicable Order Form, MapleLMS shall charge, and Client shall pay, an additional fee for each additional user in excess of the number of Authorized Users set forth in the applicable Order Form.
- No Rights to Other Software/Services. Client acknowledges and agrees that Client is only being granted the right to use the Services, Software, and Documentation specified in the Order Form(s) for the period(s) specified therein and that, for greater certainty, such right shall not be construed as to grant Client the right to use any other software, services or documentation of offered by MapleLMS or its suppliers, or to use or exploit the Software, Services, and Documentation in any manner other than as expressly permitted by the Agreement.
- Compliance with Laws. Client and Client’s Authorized Users shall comply with all applicable laws (including, but not limited to export/import laws and laws relating to privacy, data security, obscenity, copyright, trademark, confidential information, trade secret, libel, slander or defamation). Client and each Authorized User shall not, directly or indirectly, send, submit, post, receive or otherwise facilitate, or in any way use, or permit to be used, the Software, Services, or Documentation, to send, submit, post, receive or otherwise facilitate the transmission of any materials that are determined by MapleLMS in its reasonable discretion to be abusive, obscene, profane, sexually explicit, threatening, or materials containing blatant expressions of bigotry, racism or hate, or which violate or infringe any third-party right. MapleLMS reserves the right to terminate Client’s or any Authorized User’s access to or use of the Services or Software for non-compliance with this paragraph.
2. Client Restrictions
. Client agrees to use the Services and Software in compliance with all applicable laws and shall not: (i) permit any third party, including Authorized Users, to use the Services or Software except as permitted herein; (ii) modify, reverse engineer, disassemble, or decompile the Software, or cause or permit others to do so; (iii) use the Services or Software in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services, Software, or Documentation; (iv) remove or modify any title, trademark, copyright and/or restricted rights notices or labels from the Services, Software, or Documentation; (v) create derivative works based on the Services or Software or otherwise violate MapleLMS’s intellectual property rights; (vi) use Services or Software on a service bureau basis; or (vii) use the Services, Software, or Documentation in any manner inconsistent with this Agreement.
3. Third party software
. The Software and Services may contain third party software and MapleLMS reserves the right to modify the Software and Services to maintain compliance with the license terms of third party software. MapleLMS utilizes various Open Source software under the GNU license for ASP services including moodle and drupal, a list of which will be provided upon request. MapleLMS is required to, and Client agrees that it will also, comply with the applicable terms of any third party license of which you have been notified by MapleLMS or have access to publicly. MapleLMS is not responsible in any way for claims or damages arising from Client’s or its Authorized User’s use of such third party software and makes no representation or warranty whatsoever concerning such third party software. In the event any modifications made by MapleLMS to the Software or the Services to maintain compliance with the license terms of third party software result in a price increase, MapleLMS will promptly notify the Client of such additional third party license fees which shall be added to the invoice(s) for the Services.
4. Registration, passwords, and access
Client and Client’s Authorized Users will be required to provide information in order to register for and/or use certain Software and Services. Client agrees, and will ensure Client’s Authorized Users agree, to (a) provide true, accurate, current and complete information about Client and each Authorized User as prompted by the Software’s registration form, and (b) maintain and promptly update all such information to keep it true, accurate, current and complete. Authorized Users may receive a password and account designations upon completing the registration process. Client and each Authorized User is responsible for maintaining the confidentiality of these account(s) and password(s) and are fully responsible for all activities that occur under such passwords or user identifications. Client shall promptly notify MapleLMS of any unauthorized use of any Authorized User’s username and password and any other breach of security.
5. Term and termination
The term of this Agreement shall commence on the Effective Date and shall terminate on the earlier to occur of (i) termination by either party in accordance with this paragraph, or (ii) 1 year after the date on which all services under all Order Forms between MapleLMS and Client have been completed (the “Term”). Either party may terminate this Agreement and any Order Form (x) upon a material breach by the other party that remains uncured for fourteen (14) days after written notice from the non-breaching party to the breaching party, or (y) for gross negligence or more culpable conduct, fraud, or criminal acts or omissions of the other party. MapleLMS may, in its sole discretion, immediately terminate this Agreement and any Order Form upon Client’s or an Authorized User’s violation of Sections 1.5, 2, 6, 9, and 10.
6. Proprietary rights and copyright
Client acknowledges and agrees that the Software and Service and any necessary software used in connection therewith contain proprietary and confidential information of MapleLMS and its third party suppliers and licensors that is protected by applicable intellectual property and other laws. Title to and ownership of the Software (including all source code), Services and Documentation and any modifications made thereto and all intellectual property rights therein shall at all times remain with MapleLMS and/or its third party suppliers or licensors. Client shall not obtain any right, title or ownership interest in the Software, Services or Documentation except the limited right to use the Software, Services and Documentation as explicitly provided in the Agreement. The terms of this paragraph apply to all customized work or modifications to the Services, Software, or Documentation made by MapleLMS at the Client’s request, all of which shall remain the exclusive property of MapleLMS and shall not constitute work made for hire.
7. CUSTOMER CONTENT AND DATA
Client is solely responsible for all Customer Content, as well as for the content of any communications by Client or Client’s Authorized Users, including any communications involving the use of the Services or the Software. By uploading or otherwise making available any Customer Content, Client automatically grants and/or warrants that the owner has granted MapleLMS, a perpetual, world-wide, royalty-free, non-exclusive, sub licensable, irrevocable right and license to use, reproduce, modify, publish, distribute, perform, display, and transmit the Customer Content through the Services, including use of Customer Content, courses, designs and customizations for software improvements and issue resolution purposes. Client also permits any other user with access to Client’s instance of the Services, subject to Client’s restrictions, to access, view, store, and reproduce the Customer Content to the same extent permitted herein. Client acknowledges and agrees that MapleLMS does not pre-screen Customer Content, but that MapleLMS shall have the right (but not the obligation) in its sole discretion to refuse or move any Customer Content that is available through the Software and/or Services. Without limiting the foregoing, MapleLMS has the right to remove any Customer Content or Client’s access to the Software and/or Services that violates the terms of this Agreement or is otherwise objectionable as determined in MapleLMS’s reasonable discretion. “Customer Content” means all items supplied by Client or Client’s Authorized Users for inclusion in, use in association with, or uploading to the Services or the Software, including all program, data, or other software files, regardless of format, documents, text, pictures, photographs, graphics, video, animation, and sound recordings.
8. Fees and payment terms
The fees for the Services, Software, and Documentation are set forth in the Order Form for each event. All fees required by the Order Form will be due in accordance with the provisions of the Order Form, but in no event later than thirty (30) days after the date of an invoice issued by MapleLMS. All payments shall be made in U.S. dollars and remitted in accordance with the instructions in the applicable Order Form. Late payment of any fees due and payable to MapleLMS shall give MapleLMS the right to suspend access to the Software and Services and may be treated as a material breach of this Agreement for purposes of Section 5. Interest may be charged on any overdue amounts at the lower of: (a) the highest permissible rate under applicable law, or (b) 18% per annum, charged at 1.5% per month from the date on which such amount fell due until the date of payment, whether before or after judgment. The fees hereunder do not include any sales, use, excise, import or export, value-added or similar tax or interest, or any costs associated with the collection or withholding thereof, or any government permit fees, license fees or customs or similar fees levied on the delivery of any Software or the performance of the Services by MapleLMS to the Client. Client is responsible for payment of such applicable taxes or fees. Except as otherwise provided in the applicable Order Form, all expenses of a party shall be the responsibility of such party.
Each party will keep the other party’s Confidential Information confidential. Specifically, each party receiving Confidential Information agrees not to disclose such Confidential Information except to those directors, officers, managers, employees and agents of such party (i) whose duties justify their need to know such information and (ii) who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information. Each party acknowledges that it has all requisite authority under applicable laws to provide the other party with access to Confidential Information. Each party receiving Confidential Information shall treat such information as strictly confidential, and shall use the same care to prevent disclosure of such information as such party uses with respect to its own confidential and proprietary information, provided that in any case it shall not use less than the care a reasonable person would use under similar circumstances. “Confidential Information” means any non-public information disclosed by either party to the other or related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. “Confidential Information” shall also include non-public information about the Software, Services, or Documentation.
11. DISCLAIMER OF warrantIES; LIMITATION OF LIABILITY
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN ANY ATTACHED ORDER FORM(S): (A) THE SOFTWARE AND ALL PORTIONS THEREOF, AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAPLELMS AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND/OR QUIET ENJOYMENT; (B) NEITHER MAPLELMS NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE OR SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS OF THE CLIENT, OR THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE SOFTWARE OR SERVICES IS COMPATIBLE WITH ANY PARTICULAR COMPUTER SYSTEM OR SOFTWARE; AND (C) MAPLELMS AND ITS LICENSORS MAKE NO GUARANTEE OF ACCESS TO OR OF ACCURACY OF THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SOFTWARE OR SERVICES. WITHOUT LIMITING THE FOREGOING, CLIENT ACKNOWLEDGES THAT THE SERVICES AND/OR THE SOFTWARE ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS (INCLUDING, OPERATION OF NUCLEAR POWER FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, SURGICAL OR MEDICAL FACILITIES, LIFE SUPPORT, OR WEAPONS SYSTEMS) AND THAT MAPLELMS SPECIFICALLY DISCLAIMS ANY EXPRESSED OR IMPLIED REPRESENTATION, WARRANTY, OR CONDITION OF FITNESS FOR SUCH PURPOSES.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MAPLELMS OR ITS LICENSORS BE LIABLE TO THE CLIENT OR ANY OF CLIENT’S AUTHORIZED USERS FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE SERVICES OR THE DOCUMENTATION, WHETHER OR NOT MAPLELMS WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE; (B) ANY LOSS OR CORRUPTION OF DATA; OR (C) ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES). IN NO EVENT SHALL MAPLELMS’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, EXCEED THE AMOUNT OF FEES PAID BY CLIENT UNDER THIS AGREEMENT FOR THE PARTICULAR SOFTWARE, AND/OR SERVICES OF A SPECIFIC COURSE OR WITH RESPECT TO WHICH THE RELEVANT CLAIM AROSE DURING THE TWO (2)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT, OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
12. Infringement; Indemnification
- If any third party brings a claim against the Client alleging that the use of the Software or Services authorized under this Agreement infringes: (1) a U.S. or European patent issued prior to the Effective Date or copyright, Client must promptly notify MapleLMS in writing and make no admission in relation to such alleged infringement. In connection with any such claim and provided that Client has promptly fulfilled all of the foregoing obligations and is not in material breach of the Agreement, MapleLMS shall at its own expense and option: (i) indemnify, defend, and settle such claim, (ii) procure Client the right to use the infringing Software or Services, (iii) modify or replace the Software or Services to avoid infringement; or (iv) refund the applicable fee paid for the current term. In the event that MapleLMS exercises option (i) above, it shall have the sole and exclusive authority to defend and/or settle any such claim or action, provided that MapleLMS will keep Client informed of, and will consult with any independent legal advisors appointed by you at your own expense regarding the progress of such defense.
- MapleLMS shall have no liability to the Client under Section 12.1 or otherwise for any claim or action alleging infringement or violation of applicable privacy or publicity laws based upon: (i) any use by Client of the Software or Services in a manner other than as specified by MapleLMS, or Client’s breach of this Agreement; (ii) any combination of the Software or Services with other products, equipment, software, systems or data not manufactured by MapleLMS (including, without limitation, any software produced by Client for use with the Software) or not approved by MapleLMS to the extent such claim is directed against such combination; (iii) the Customer Content, or the use of the Customer Content; or (iv) any modifications or customization of the Software or ASP Services by Client or at Client’s request (any of the foregoing, separately and collectively, “Customer Matters”).
- Client shall, at Client’s own expense, indemnify, hold harmless and, at MapleLMS’s option, defend MapleLMS against any losses, damages or expenses (including, without limitation, reasonable attorneys’ fees) arising from any claim, suit or proceeding brought by a third party against MapleLMS arising out of a Customer Matter and shall pay any damages finally awarded or settlement amounts agreed upon to the extent based upon a Customer Matter (any of the foregoing indemnifiable matters, each a “Company Claim”), provided that Client will not settle any Company Claim unless such settlement completely and forever releases MapleLMS with respect thereto or unless MapleLMS provides its prior written consent to such settlement. MapleLMS agrees (i) to provide Client with prompt written notice of any Company Claim and (ii) to provide such assistance as Client may reasonably request, at Client’s expense, in order to settle or defend any such Company Claim.
- THE FOREGOING PROVISIONS OF THIS SECTION 12 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF EACH PARTY, AND THE EXCLUSIVE REMEDY OF EACH PARTY, WITH RESPECT TO CLAIMS BY ANY THIRD PARTY ALLEGING INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
- Order of Precedence. In the event a conflict arises between this Agreement and the provisions of any Order Form, this Agreement will govern unless the relevant Order Form expressly provides otherwise.
- Severability. Should any term or provision of this Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term or provision shall be construed (i) to have been modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of applicable law and (ii) to give effect to the intent of the parties (including, without limitation, with respect to the economic effect of the Agreement), and the remainder of this Agreement (or, as the case may be, the application of such provisions to other circumstances) shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law.
- Governing Law. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of Maryland without reference to its conflicts of law provisions, and each party irrevocably submits to the exclusive jurisdiction of the state and federal courts in or for the State of Maryland. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act shall not apply to this Agreement.
- Modification and Waiver. No modification, amendment, supplement, or other change to this Agreement, including, without limitation, changes to any Order Form, will be effective unless set forth in writing and signed by duly authorized representatives of the parties. No waivers under this Agreement will be effective unless expressly set forth in writing and signed by a duly authorized representative of the party against whom enforcement thereof is sought.
- Assignment. This Agreement and all Order Forms may not be assigned by Client without the prior written consent of MapleLMS. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
- Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by facsimile or email, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth on the Order From or to such other address as shall be given in accordance with this Section 13.6, and shall be effective upon receipt.
- Force Majeure. Except with regard to payment obligations, neither party will be responsible for any failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots, wars, civil unrest, public health emergencies including pandemics and epidemics, terrorist acts or inability to obtain any export or import license or other approval or authorization of any government authority.
- Relationship. MapleLMS and the Client are independent contracting parties. This Agreement shall not constitute the parties as principal and agent, partners, joint ventures, or employer and employee.
- Entire Agreement. This Agreement, the Order Form(s) entered into between MapleLMS and the Client, and all documents incorporated by reference herein or therein, constitutes the entire, full and complete Agreement between the parties concerning the subject matter of this Agreement and the Order Form(s) and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties.