1. GENERAL
1.1. Diversity Science provides individuals and organizations access to the Courseware, whether currently existing or later developed. Courseware is delivered via file transfer for installation onto the Licensee’s Learning Management System (LMS).
1.2. This Courseware may be accessed only as specifically permitted in terms of this License Agreement. By using the Diversity Science Products and Services provided and accessing any Courseware, you contractually agree and accept the terms of this Diversity Science License Agreement.
2. DEFINITIONS
2.1. The term "Diversity Science," when used in this Agreement, includes Diversity Science, a public benefit corporation, located at 10121 SE Sunnyside Road, Ste 300, Clackamas, OR 97015, and all employees, instructors, agents, and consultants of Diversity Science.
2.2. The term "Courseware" refers to all resources including eLearning, text, articles, documents, job aids, handouts, guided activities, recommendations, videos, images, surveys, tests, quizzes, case studies, and all other materials provided to Licensee by Diversity Science, including all derivative works thereof regardless of authorship. This also includes any and all other supplemental materials provided on the Diversity Science learning website.
2.3. The term “License Period” means the period from the license commencement date specified in this Agreement through the license end date also specified in this Agreement.
2.4. The term "Licensee” refers to the individual, partnership, association, incorporated business, or similar legal entity purchasing access to the Courseware.
2.5. The term “Learner” refers to each individual employee, intern, volunteer, member, and Consultant of Licensee or of Licensee’s Affiliate that is given access to Diversity Science Courseware by Licensee.
2.6. The term “Seat” refers to a single Learner’s access to a single course. For example, if a Learner is given access to two courses, they are using two Seats. Courseware Seats are calculated on a per- Learner, per-course basis.
2.7. The term “Consultant” refers to an independent contractor who is bound by a written agreement with Licensee or its Affiliate.
2.8. The term “Affiliate” refers to any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, or other entity (“Person”) that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, Licensee.
2.9. “Control” (and with correlative meaning, “controlled by”) means the direct possession of the power to direct the management or policies of another entity, whether through the ownership of voting securities or otherwise.
3. LICENSE GRANT
3.1. This Agreement entitles Licensee to install and use a copy of the Courseware solely on an LMS or other delivery system that is owned, leased, or controlled by your (Licensee’s) organization.
4. RESTRICTIONS ON TRANSFER
4.1. Without first obtaining the express written consent of Diversity Science, you may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Courseware.
5. USAGE
5.1. Each Seat provides the assigned Learner with access to the corresponding Course for the entire License Period.
5.2. Licensee agrees that a Seat will be assigned to a single Learner. A Seat, once assigned to one Learner, may not be accessed or used by others.
5.3. Licensee will ensure that Learners who are provided a Seat will not provide or otherwise make available any part of the Courseware, in whole or in part, or in any form to any other person.
6. OWNERSHIP AND LIMITATION OF LICENSE
6.1. Courseware is licensed, not sold. Licensee agrees to use the Courseware only as expressly permitted in this Agreement.
6.2. Without limiting any of the foregoing, Licensee shall not, and shall not permit any Learner to:
6.2a. Copy, modify, or create a derivative work of any part or whole of the Courseware without prior written agreement from Diversity Science;
6.2b. Rent, lease, loan, sell, sublicense, assign, publish, display, distribute, transmit, transfer, or otherwise make available the Courseware to any third party;
6.2c. Reverse engineer, translate, decompile, decode, adapt, or attempt to derive or gain access to the source code of the Courseware;
6.2d. Remove any proprietary notice from the Courseware;
6.2e. Charge any individual Learner or any third party a fee for access to Courseware;
6.2f. Utilize any Courseware for any malicious, libelous, or illegal purpose.
6.3. Licensee is responsible and liable for all uses of the Courseware resulting from access provided by Licensee, directly or indirectly, whether or not such access or use is permitted by this License Agreement. Without limiting the foregoing, Licensee is responsible for all acts and omissions of Learners. Any act or omission by a Learner that would constitute a breach of this License Agreement, if taken by Licensee, will be deemed a breach of this License Agreement by Licensee. Licensee agrees to supervise and control the use of the Courseware by Learners.
6.4. Licensee agrees that if Licensee becomes aware of any misuse of any Courseware or any security breach that could compromise the security or integrity of the Courseware or otherwise adversely affect Diversity Science or Learners, Licensee will notify Diversity Science immediately.
6.5. The provisions of this Section 6 shall remain in perpetuity and shall survive termination of this Agreement for any reason.
7. WARRANTIES AND LIMITATION OF LIABILITY
7.1. Diversity Science represents and warrants that it is the owner of the Courseware or otherwise has the right to grant to Licensee the right to use the Courseware as authorized under this Agreement, without violating the rights of any third party, and there is currently no actual or threatened suit by any third party based on an alleged violation of such right by Diversity Science.
7.2. Diversity Science provides Courseware in SCORM 1.2 and SCORM 2004 file formats. If the eLearning Experience is accompanied by other file types (documents, videos, images) they will be provided in .mp4, .mp3, .pdf, .doc, .png, .gif, and/or .jpeg file formats.
7.3. Diversity Science makes no warranty that the Courseware will meet Licensee LMS requirements or operate under Licensee-specific conditions of use. Licensee must install and test the SCORM on their Learning Management System (LMS) within 14 days of receipt.
7.4. Diversity Science disclaims all warranties, whether express, implied, statutory or otherwise, in fact or in law. Licensee must determine whether the software product sufficiently meets Licensee requirements. Licensee bears sole responsibility and all liability for any loss incurred due to the failure of the Courseware to meet Licensee requirements.
7.5. Diversity Science specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice.
7.6. In no event will Diversity Science be liable under or in connection with this License Agreement (including, without limitation, Learner’s use of the Courseware or reliance on any information provided (by or in the Courseware) under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) consequential incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether Diversity Science was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.
7.7. Licensee remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction or replacement of the Courseware. Selection of whether to correct or replace shall be solely at the discretion of Diversity Science. Diversity Science reserves the right to substitute a functionally equivalent copy of the Courseware as a replacement. If Diversity Science is unable to provide a replacement or substitute the Courseware or corrections to the Courseware, your sole alternate remedy shall be a refund of the purchase price for the Courseware exclusive of any costs.
8. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
8.1. Diversity Science Courseware is licensed and not sold. The Courseware is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Diversity Science and its licensors and suppliers own all right, title, and interest in and to the Courseware, including all intellectual property rights.
8.2. Licensee acknowledges that the Courseware is confidential and proprietary information of Diversity Science, the development of which required specialized expertise and the expenditure of considerable time and money by Diversity Science. Licensee shall treat the Courseware in confidence and shall not disclose nor permit any Learners or other personnel or members to disclose the same to any third party except for other Learners.
8.3. The provisions of Section 8.2 will not apply to information that Licensee can establish by documentary evidence was: (a) already publicly known at the time of disclosure or afterward becomes publicly known through no fault of Licensee; (b) already known to Licensee at the time of receipt from Diversity Science; (c) rightfully obtained by Licensee on a non-confidential basis from a third party; or (d) independently developed by Licensee prior to receipt from Diversity Science.
8.4. The provisions of this Section 8 shall remain in perpetuity and shall survive termination of this Agreement for any reason.
9. DIVERSITY SCIENCE RIGHT TO MAKE UPDATES TO COURSEWARE
9.1. Diversity Science may update the Courseware, provided that Courseware shall always match the description of it that Diversity Science provided to Licensee before you ordered it.
10. NO MEDICAL ADVICE PROVIDED
10.1. Diversity Science provides the Courseware for educational purposes. Courses do not provide any form of medical advice and may not be relied upon for such purposes.
11. TERMINATION
11.1. Diversity Science may terminate this License if Licensee fails to comply with any of the terms herein or fails to pay any amount to Diversity Science when due, in which case Licensee’s authorization to access the Courseware and to permit Learners to access the Courseware is also terminated. Upon termination or expiration of this License Agreement, Licensee shall promptly cease using and delete, destroy or return to Diversity Science, at the direction of Diversity Science, all copies of the Courseware. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12. MISCELLANEOUS
12.1. Severability. If any provision in this License Agreement is determined to be invalid or unenforceable by any court of competent jurisdiction, such provision shall be modified to be enforceable and consistent with the parties’ intent as closely as possible. Further, the remainder of this License Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
12.2. Choice of Law; Submission to Jurisdiction. This License is governed by the laws of the State of Oregon, excluding its conflicts of law and choice of law provisions or rules that would require or permit the application of the law of another jurisdiction. Any legal suit, action, or proceeding arising out of this Agreement or the license granted hereunder shall be instituted exclusively in the courts located in Multnomah County, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.3. Assignment. This License Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Neither party may assign this License Agreement or transfer any rights or delegate any obligations hereunder, whether by operation of law, change of control, or in any other manner, without the prior written consent of the other party. Any purported assignment, transfer, or delegation in violation of this Section 12.3 will be null and void.
12.4. Force Majeure. Neither party shall be liable to the other party for any delay or failure to perform its obligations hereunder if such delay or failure arises from or is caused by any circumstances beyond the reasonable control of that party. Such causes include, but are not limited to, act of God, flood, fire, earthquake, explosion, war, invasion, hostilities, terrorist threat or act, riot or other civil unrest, government order, law, or action, national or regional emergency, or loss of electricity or other utilities.
12.5. Entire Agreement. This License Agreement in combination with the [Statement of Work] constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous agreements, understandings, warranties and representations, whether oral or written, with respect to such subject matter.
12.6. Independent Contractor. Diversity Science is an independent contractor and nothing in this Agreement will be deemed to make Diversity Science an agent, employee, partner, or joint venture of Licensee. Diversity Science will have no authority to bind, commit, or otherwise obligate Licensee in any manner whatsoever.
12.7. Amendment, Modification, Waiver. No amendment to or modification of this License Agreement is effective unless it is in writing and signed by Diversity Science. No waiver by either party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this License Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this License Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.8. Headings. Headings are for reference purposes only and have no substantive effect.
12.9. Compliance with Law. Both parties shall conduct themselves in strict accordance with all applicable state and federal laws and regulations.
12.10. Exclusion. Diversity Science warrants that, to its knowledge, neither Diversity Science nor its employees or agents have been excluded from participation in federal or state healthcare programs. If Diversity Science is excluded, Licensee may terminate this License Agreement, without penalty and with applicable refund, upon written notice to Diversity Science.
12.11. Indemnification. Diversity Science will indemnify, defend, and hold Licensee (and its affiliates, officers, directors, and agents) harmless from and against all third-party claims, damages, or other losses arising from breach of this License Agreement by Diversity Science or any “Infringement Claim” defined as any assertion that Licensee’s use of the software under this License Agreement infringes any existing patent, trademark, copyright, or other proprietary right of any third party. If the software becomes the subject of an Infringement Claim or becomes the subject of an injunction or settlement prohibiting the use of the software, then Diversity Science will either (i) procure for Licensee the right to continue using the software; (ii) replace the software with a non- infringing product with comparable performance; or (iii) discontinue its provision of the software to Licensee and end any obligation of Licensee regarding payment of fees, including refund of any fees paid in advance on a prorated bases. This Section 12.11 refers only to existing patents, trademarks, copyrights, or other proprietary rights of third parties not named in this agreement.
