Training Video License Agreement

INCOM Manufacturing Group
Training Video License Agreement
Last Updated: July 23, 2013

IMPORTANT NOTICE: This Agreement governs use by Customer (identified in the Order Confirmation) and its personnel of training videos provided by INCOM Manufacturing Group. This Agreement limits and excludes warranties and remedies regarding training videos, exempts INCOM Manufacturing Group and other persons from liability or limits their liability, specifies the jurisdiction for resolution of disputes, and contains other important provisions.

PLEASE READ THIS AGREEMENT CAREFULLY. By submitting an order for a license to use a training video, you acknowledge and signify Customer’s acceptance and agreement, without limitation or qualification, to be bound by this Agreement, and you represent and warrant that you have the legal authority to accept and agree to this Agreement on behalf of Customer. If Customer does not agree with each provision of this Agreement, or you are not authorized to agree to this Agreement on behalf of Customer, then neither you nor any other person on behalf of Customer may submit an order for a training video, access a training video, or use a training video.
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Introduction

This Agreement is between INCOM and Customer (identified in the Order Confirmation) (collectively the “Parties” and each a “Party”). This Agreement is comprised of the Order Confirmation and the General Terms and Conditions set forth below.
General Terms and Conditions

1. Interpretation:

1.1 Definitions: In this Agreement, the following capitalized terms have the following meanings, and all other capitalized terms have the meaning set forth elsewhere in this Agreement:  “End User License” means non-exclusive, personal, non-sublicensable, non-transferable, restricted and limited license for Customer to permit one (1) specific, named individual employed or engaged by Customer (an “End User”) to view the Training Video for the End User’s personal, non-commercial educational purposes only;  “INCOM” means the INCOM Manufacturing Group entity identified in the Order Confirmation;  “Order Confirmation” means a document that provides details of the Training Video and the End User Licenses purchased by Customer under this Agreement and is either:  in paper format signed by Customer and INCOM; or  in electronic format issued by INCOM to Customer to confirm an order placed by Customer using a telephone, online or other electronic ordering process offered by INCOM; and  “Training Video” means the training video specified in an Order Confirmation.

1.2 Contract Documents: If there is an inconsistency or conflict between an Order Confirmation and these General Terms and Conditions, then these General Terms and Conditions will take priority and govern unless the Order Confirmation expressly states that it takes priority over specific provisions of these General Terms and Conditions in which case the Order Confirmation will take priority over the specified provisions but only to the extent of the inconsistency or conflict.

1.3 Application: For greater certainty, if an Order Confirmation refers to two or more different Training Videos, then this Agreement applies to each Training Video separately.

2. Use of Training Video

2.1 End User Licenses:

(1.a) License Grant: Subject to the provisions of this Agreement and Customer’s prompt payment of all applicable fees, INCOM hereby grants to Customer the number of End User Licenses purchased by Customer expressly set forth in an Order Confirmation. An End User License may be assigned by Customer to a specific, individual End User only once, and may not be shared or transferred from one individual to another.

(1.b) License Term:  Unless the Order Confirmation expressly specifies otherwise, the term of an End User License will commence on the effective date of the Order Confirmation and will continue for a period of twelve (12) months, unless terminated earlier in accordance with this Agreement.

(1.c) Computer Systems/Copies: Customer will not install or use the Training Video on any computer system other than an Authorized Device. Customer will not copy the Training Video to any tangible medium (such as a DVD or flash drive), except that Customer may make one (1) copy of the Training Video for non-production backup purposes only. In this Agreement, “Authorized Device” means a computer that is owned or leased by Customer and used exclusively by Customer for Customer’s internal business purposes only.

(1.d) Timing: For greater certainty, Customer will purchase an End User License and allocate the End User License to an End User before the End User views the Training Video.

2.2 Lists/Compliance Certificate: Customer will keep current and complete list of all Authorized Devices (identifying each device by serial number) and all End Users (identifying each by name and location) (the “List”). Upon request by INCOM, Customer will promptly deliver to INCOM a copy of the List together with a certificate signed by an authorized representative of Customer certifying that the List is accurate and complete (a “Compliance Certificate”).

2.3 General Restrictions/Prohibitions: Customer will not, and will ensure that End Users will not: use, or provide or permit access to or use of, the Training Video except as expressly permitted by this Agreement; copy (except as expressly set forth in section 2.1(c)), reproduce, translate, modify, enhance, or create derivative works from the Training Video;  license, sublicense, grant, sell, resell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, or otherwise give or make available or permit the use of the Training Video to or for the benefit of any other person, whether as a service bureau or otherwise, and with or without charge, except to an End User pursuant to an End User License;  alter, attempt to circumvent, destroy, obscure, conceal, modify, or remove any notices (including proprietary rights notices), proprietary codes or locks, means of identification, digital rights tools or management information, technological protection measures, security or control measures, or agreements on, in or in relation to the Training Video;  copy any ideas from the Training Video or create a product or service using the ideas from the Training Video; or  permit, assist or encourage any other person to do any of the foregoing in this section 2.3 or to use the Training Video in a way that would constitute an infringement of the rights of INCOM and its licensors or a breach of this Agreement if it were done by Customer. The restrictions and prohibitions in this section 2.3 do not apply if and to the extent, but only to the extent, that the restrictions and prohibitions are prohibited by applicable law. Regardless of the number of copies of the Training Video received by Customer or the means or media by which Customer receives them, each copy of the Training Video is subject to this Agreement.

2.4 End Users: Customer is fully responsible and liable for all acts and omissions by or on behalf of an End User and the End User’s access to and use of the Training Video and the results obtained therefrom. Customer will ensure that each End User fully complies with all of the restrictions, prohibitions, requirements and limitations regarding the Training Video set forth or referenced in this Agreement.

2.5 No Updates: For greater certainty, INCOM is not obligated to provide Customer with updates or new versions or releases of the Training Video.

3. Fees

3.1 Fees: Customer will pay to INCOM the fees and charges (including the applicable fee for each End User License) specified in the Order Confirmation and as otherwise set forth in this Agreement (collectively “Fees”). All Fees and pricing terms are confidential to INCOM, and Customer will not disclose that information to any other person.

3.2 Taxes: Fees are exclusive of all applicable federal, state, provincial, and municipal sales, use, value-added, property, excise, import, foreign, withholding and other governmental taxes, duties, charges, levies, fees, excises, tariffs and assessments, of any nature whatsoever now or hereafter imposed (collectively “Taxes”). Customer is solely responsible and liable for, and will pay and remit in a timely manner, all Taxes (other than corporate income taxes payable by INCOM) associated with, based on or due as a result of Fees, and all related interest, penalties and expenses. Without limiting the generality of the foregoing in this section 3.2, Customer will pay to INCOM all Taxes regarding Fees that INCOM is under a legal obligation to collect from Customer and that are properly included in an invoice issued by INCOM.

3.3 Payments: INCOM will issue invoices for Fees and Taxes. INCOM may deliver invoices to Customer by email. Each invoice is due and payable within thirty (30) days after Customer’s receipt of the invoice, unless the Order Confirmation specifies otherwise. Payment obligations are not cancellable and advance payments are non-refundable. Fees and Taxes are payable in the currency specified in the Order Confirmation, provided that if no currency is specified Fees and applicable Taxes are payable in U.S. currency. Overdue payments will be subject to interest at a rate of 1½% for each month (18% per annum) or fraction thereof that the payment is overdue, or the highest rate permitted by applicable law, whichever is lower. Except to the extent required by law, all amounts payable to INCOM are payable in full without any deduction or withholding.

4. Ownership/Proprietary Rights

4.1 Ownership: INCOM and its licensors own and retain all right, title and interest (including intellectual property rights) throughout the world in, to and associated with the Training Video. The Training Video is licensed (not sold) to Customer for limited purposes as expressly set forth in this Agreement. The Training Video and related intellectual property rights are protected throughout the world by international laws and treaties. Except for End User Licenses, Customer will not acquire any right, title or interest in, to or associated with the Training Video pursuant to this Agreement or otherwise. All rights not expressly granted under this Agreement are reserved to INCOM.

4.2 Feedback: If Customer or an End User or any of Customer’s other personnel give feedback about the Training Video (including any ideas or suggestions for enhancements or improvements) to INCOM, then INCOM and its suppliers and licensors and their respective successors, assigns and licensees may use and commercialize the feedback in any way and for any purpose without providing any compensation or attribution to Customer, the End User or any other person.

5. Additional Matters

5.1 Representations/Warranties: Customer represents and warrants to INCOM that Customer has the right, power, capacity and authority to enter into and perform its obligations and exercise its rights under this Agreement.

5.2 Technical Requirements: Customer is solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including personal computers), software and services necessary for Customer and each End User to access and use the Training Video.

5.3 Unauthorized Use: Customer will promptly notify INCOM if Customer knows of or suspects any unauthorized access to or use of the Training Video.

5.4 Publicity: INCOM may publicize Customer’s use of the Training Video and may reference Customer (using Customer’s name and logo) in published lists or directories of INCOM customers.

5.5 Audit: If Customer fails to promptly deliver a List and Compliance Certificate pursuant to section 2.2, then INCOM may inspect Customer’s books, records and facilities (including computer equipment), and interview Customer’s personnel, in order to verify Customer’s compliance with this Agreement and the accuracy of all Lists, provided that the inspection and interviews will be conducted on not less than seven (7) days prior notice to Customer, during normal business hours, in a manner as not to interfere unreasonably with the operations of Customer’s business, and subject to reasonable confidentiality and security requirements reasonably requested by Customer. If an inspection discloses any unauthorized use of the Training Video, Customer will immediately pay to INCOM all costs and expenses incurred by INCOM to conduct the audit or inspection.

6. Disclaimers, Liability Exclusions/Limitations and Indemnity:

6.1 General Disclaimer: Except as expressly set forth in this Agreement, the Training Video is provided “As Is”, “As Available” and “With All Faults”, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or performance, including any representations, warranties, conditions or guarantees of or relating to: accuracy, completeness, durability, errors, fitness for a particular purpose, merchantability, non-infringement, lack of viruses or other disabling or harmful code, performance, quality, results, suitability, security, timeliness, title, truthfulness, quiet enjoyment, uninterrupted service or workmanlike effort; all of which are hereby waived by Customer and disclaimed by INCOM to the fullest extent permitted by law. No oral or written information or advice given by or on behalf of INCOM will create any legally binding or effective representation, warranty, condition or promise by INCOM. Customer is solely responsible for the selection and use of the Training Video to achieve Customer’s intended results and Customer uses the Training Video at Customer’s own risk.

6.2 Disclaimer for Training Video: The information provided by the Training Video is general in nature and is intended for educational purposes only. The Training Video is not intended to be a complete or accurate source of all relevant information regarding the subject of the Training Video, and is not a substitute for academic training or professional advice.

6.3 Exceptions: The laws in some jurisdictions prohibit or limit the disclaimer of certain warranties and conditions, and so the disclaimers in this Agreement might not apply to Customer.

6.4 Liability Exclusions/Limitation: Notwithstanding any other provision of this Agreement:

(4.a) Exclusions: the liability (if any) of INCOM arising from, connected with or relating to the Training Video, this Agreement or any related matter is limited to the direct damages actually suffered by Customer only, and in no event and under no circumstances will INCOM be liable to Customer or any other person for any indirect, incidental, consequential, special, punitive or exemplary loss or damage of any nature or kind whatsoever, or for any loss of profits, loss of savings, loss of use, loss of production, loss of business, loss of goodwill, loss or misuse of data, or for any claims made by any third party (including an End User);

(4.b) Limitation: without limiting the generality of section 6.4(a), in no event and under no circumstances will the total aggregate liability of INCOM arising from, connected with or relating to the Training Video, this Agreement or any related matter ever exceed $100; and

(4.c) Application: this section 6.4 applies to liability under any theory of liability (including contract, tort, strict liability, or statutory liability), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by INCOM or any person for whom INCOM is responsible, even if other remedies are not available or do not adequately compensate for the loss or damage, and even if INCOM has been advised of the possibility of the loss or damage being incurred.

6.5 Indemnity: Customer will defend, indemnify and hold harmless INCOM and its directors, officers, employees, agents, service providers, and other representatives from and against any and all losses, damages, costs, expenses, claims, complaints, demands, actions, suits, proceedings, obligations and liabilities (including legal fees and expenses and settlement payments) arising from, connected with or relating to use by Customer and End Users of the Training Video or any negligence, misconduct, or breach of this Agreement by Customer or any person (including an End User) for whom Customer is responsible. Notwithstanding the foregoing in this section 6.5, INCOM and its directors, officers, employees, agents, service providers, and other representatives retain the right to participate (with counsel of their own selection at their sole cost and expense) in the defense of and settlement negotiations relating to any third party claim, complaint, demand, action, suit or proceeding.

6.6 Fair Allocation of Liability: The Parties acknowledge and agree that this Agreement presents a fair allocation of risk and liability, and that this section 6 is an essential part of the bargain between the Parties, a controlling factor in setting the Fees and an inducement to the Parties to enter into this Agreement.

7. Term and Termination

7.1 Term of Agreement: This Agreement will commence on the effective date of the Order Confirmation and will continue in full force and effect until terminated in accordance with this Agreement.

7.2 Automatic Termination: This Agreement will terminate automatically and without notice to Customer thirty (30) days after the expiration or termination of all End User Licenses.

7.3 Termination for Cause: Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately upon delivery of notice of termination to the other Party if the other Party breaches this Agreement (including failure to make a required payment on time) and has not remedied the breach within thirty (30) days after receipt of a default notice from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within thirty (30) days, provided that the non-breaching Party delivers the notice of termination to the breaching Party no later than fifteen (15) days after the end of the cure period and while the breach is continuing, and provided that if the non-breaching Party does not give timely notice of termination to the breaching Party, and if the breach is continuing, then the non-breaching Party may give a further default notice in respect of the breach, in which case the provisions of this section 7.3 will apply in respect of that further default notice.

7.4 Consequences of Termination: If this Agreement is terminated for any reason: all End User Licenses will terminate immediately and automatically, and Customer will ensure that all End Users immediately cease using the Training Video; Customer will promptly permanently delete and destroy all copies of the Training Video in Customer’s possession or control; and  each Party will remain fully responsible and liable for all obligations and liabilities arising prior to the termination of this Agreement. Upon request by INCOM after the termination of this Agreement, Customer will promptly deliver to INCOM a certificate of compliance signed by Customer’s authorized representatives certifying that Customer has permanently deleted and destroyed all copies of the Training Video in Customer’s possession or control.

7.5 Survival: Notwithstanding any other provision of this Agreement, if this Agreement terminates for any reason then sections 2.3, 2.4, 3, 4, 6, 7.4, 7.5 and 8 of these General Terms and Conditions, and all other provisions necessary to their interpretation or enforcement, will survive the termination and will remain in full force and effect and be binding upon the Parties as applicable.

8. General

8.1 Notices: Unless a specific form of notice or notice delivery method is expressly specified in this Agreement, all notices required or permitted to be given under this Agreement will be in writing and will be delivered by courier, email or facsimile transmission to the Parties at their respective addresses and numbers indicated on an Order Confirmation or at other addresses and numbers the Party may from time to time designate in a notice to the other Party pursuant to this section 8.1. A notice delivered by courier will be deemed to have been received on the next business day following the date of delivery. A notice delivered by email will be deemed to have been delivered on the next business day following the date on which the recipient acknowledges receipt of the email. A notice delivered by facsimile transmission will be deemed to have been delivered on the next business day following the date of acknowledgement of receipt by the recipient’s fax machine.

8.2 Governing Law: This Agreement and the subject matter of this Agreement and all related matters will be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada and the laws of Canada applicable in Ontario, excluding any laws that implement the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Commercial Code, and excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws.

8.3 Disputes: All disputes, controversies and claims arising under, out of, in connection with, or in relation to this Agreement, or the making or validity of this Agreement, or its interpretation, or any breach thereof, or any related matters or any legal relationship associated therewith or derived therefrom (collectively “Disputes”) will be referred to and finally resolved by binding arbitration under the Rules of Arbitration of the British Columbia International Commercial Arbitration Centre (the “BCICAC”) by one (1) arbitrator appointed in accordance with those rules. The arbitration will be private and confidential, and will be administered by the BCICAC. If the BCICAC is not operative, the arbitration will proceed ad hoc and be governed by the Arbitration Act, 1991 (Ontario) or successor laws. The language used in the arbitration will be the English language. If INCOM is INCOM Manufacturing Group Ltd., then the place of arbitration will be Toronto, Ontario. If INCOM is INCOM Manufacturing Group Inc., then the place of arbitration will be Buffalo, New York. An arbitration award is final and binding and judgment thereon may be entered in any court having jurisdiction for its enforcement. Notwithstanding the foregoing in this section 8.3, a Party may seek preliminary or temporary injunctive relief from the courts of the Province of Ontario sitting in Toronto, Ontario to avoid irreparable harm or to preserve the status quo, and each Party hereby irrevocably submits and attorns to the original and exclusive jurisdiction of those courts in respect of all of those matters or any other matter that is not properly subject to arbitration pursuant to this section 8.3. Each Party irrevocably waives all rights to trial by jury.

8.4 Force Majeure: Notwithstanding any other provision of this Agreement, and except for payment obligations, neither Party will be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement if and to the extent performance is delayed or prevented due to a cause or causes that are beyond that Party’s reasonable control, including acts of God, fire, flood, earthquake, acts of war, sabotage (including network intrusions, hacking and denial of service attacks), vandalism, riots, insurrection or civil disobedience, strikes, lock-outs or other labour disruption, or act of government or government department or agency. Any delay or failure of that kind will not be deemed to be a breach of this Agreement by the defaulting Party, and the time for the defaulting Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.

8.5 Miscellaneous: This Agreement will enure to the benefit of and will be binding upon the Parties and their respective successors and permitted assigns. Customer will not assign this Agreement without INCOM’s express prior written consent, which consent may be withheld by INCOM in its discretion. INCOM may in its discretion assign this Agreement. If a provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. No consent or waiver by INCOM to or of any breach by Customer of its obligations under this Agreement will be effective unless in writing and signed by INCOM, or deemed or construed to be a consent to or waiver of a continuing breach or any other breach of those or any other obligations of Customer. Except as expressly set forth in this Agreement, the Parties’ respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which they may be entitled under this Agreement or at law, and the Parties will be entitled to pursue all of their respective rights and remedies concurrently, consecutively and alternatively. A written Order Confirmation may be executed and delivered in one or more counterparts, which may be executed and delivered by facsimile transmission or electronically in PDF or similar secure format, and each counterpart will be deemed an original and all counterparts will together constitute one and the same document.

8.6 Interpretation: In this Agreement: a reference to “this Agreement” and other similar terms refers to this Agreement as a whole (including all Contract Documents), and not just to the particular provision in which those words appear; headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions;  reference in a document that forms part of this Agreement to a section by number only is a reference to the appropriate section in the document in which the reference is made;  “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity;  “including” or “includes” means including or includes, as applicable, without limitation or restriction;  “discretion” means a person’s sole, absolute and unfettered discretion;  words importing the singular number only include the plural, and vice versa;  reference to a day, month, quarter, or year means a calendar day, month, quarter, or year, unless the context indicates otherwise; and  “law” includes common law, equity, statutes, regulations, ordinances, orders in council, and mandatory guidelines, and reference to a specific law includes all regulations, ordinances, and orders in council and mandatory guidelines made thereunder and all amendments to, or replacements of, the law or any regulation, ordinance, order in council or mandatory guideline in force from time to time, as applicable. The Parties have expressly requested and required that this Agreement and all related documents be drawn up in the English language, and any translations of this Agreement or related documents are for convenience only and are not binding on the Parties.

8.7 Amendments: This Agreement may be amended or supplemented only by a written document that expressly states that it is an amendment to this Agreement and is signed by both Parties or their successors or permitted assigns. Purchase orders or other documents issued by Customer, whether or not accepted by INCOM, are for administrative convenience only, and any terms and conditions contained in those documents are of no force or effect and will not in any way amend or supplement this Agreement.

8.8 Entire Agreement: This Agreement sets forth the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between the Parties with respect to the subject matter of this Agreement.

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