Last Updated: JULY 15, 2020

LICENSE AGREEMENT

THIS LICENSE AGREEMENT (the “Agreement”) is entered into by and between Skillsoft Corporation (“Skillsoft”) and you (you shall be referred to herein as “Customer”), and is effective as of the date of Customer’s electronic acknowledgement accepting the terms and conditions of this Agreement (“Effective Date”).

1. Products. Skillsoft grants to Customer the right to use the Skillsoft product(s) identified on Exhibit A attached hereto (the “Skillsoft Product(s)”).    Such use shall be subject to the terms and conditions set forth herein.

2. Subscription. The Skillsoft Product(s) shall be made available to Customer on an automatically renewing monthly subscription basis commencing on the Effective Date (the “Term”), and Customer hereby authorizes Skillsoft to charge a monthly or annual (as applicable) subscription fee to the credit card provided by Customer.  Customer agrees that the Skillsoft Product(s) is being provided for personal use only.  The Skillsoft Product(s) shall be provided by Skillsoft through Percipio.  Customer may terminate the Term by written notice to Skillsoft.  At the conclusion of the Term Customer shall cease all use of the Skillsoft Product(s).

3. Taxes. The fees charged to Customer do not include taxes.  Customer shall be responsible for payment of all applicable taxes, however designated or incurred, in connection with this Agreement, including without limitation, state and local excise, sales, withholding and use taxes and any other applicable governmental assessments.  If Customer fails to pay any applicable tax, then Skillsoft may pay such tax on Customer’s behalf and seek reimbursement from Customer.

    

4. License Terms.

    

1. Subject to the restrictions stated in this Agreement, Skillsoft grants to Customer, and Customer accepts, a non-exclusive, non-transferable license (without the right to sublicense) for the Term, to access and use the Skillsoft Product(s) set forth therein in within the United States for personal training purposes only.  Customer shall take all reasonable security precautions to ensure that only Customer accesses the Skillsoft Product(s).

    

2. All Skillsoft Products are the property of Skillsoft and/or its third-party publishers and/or licensors and are protected by copyright and other laws relating to proprietary rights. Except for the limited license rights granted to Customer above, the terms of this license do not convey any ownership or other rights of any kind to Customer in or to the Skillsoft Product(s), and Skillsoft reserves all rights not expressly granted to Customer herein. During the Term, Customer shall have the right to receive any corrections, enhancements, or other modifications as made commercially available to all Skillsoft customers licensing the same Skillsoft Product(s).

    

3. Customer shall not (a) reproduce, distribute, sell, sublicense, or otherwise make available the Skillsoft Product(s), or any part thereof, to any third party; (b) reverse engineer, disassemble, decompile, or otherwise attempt to derive source code from the Skillsoft Product(s), or any part thereof; (c) modify, translate, adapt, alter, or create derivative works (as defined under the United States copyright laws) based upon the Skillsoft Product(s) or any part thereof; (d) remove any proprietary notices, labels, or trademarks, or service marks on any Skillsoft Product(s); (e) merge the Skillsoft Product(s), or any component thereof, with another program; (f) use the Skillsoft Product(s), or any component thereof, for any purposes other than those explicitly stated in this Agreement; or (g) have any right to any source code for the Skillsoft Product(s).  Customer further agrees that Customer is solely responsible for the content of all visual, written, or audible communications made by Customer or its Authorized Audience using the Skillsoft Product(s).

    

5. Right to Suspend. Skillsoft reserves the right to suspend Customer’s access to the Skillsoft Product(s) should Skillsoft determine, in its sole discretion, that Customer has violated the terms of this Agreement, including but not limited to Customer’s failure to pay the subscription fees.

    

6. Warranties. Skillsoft represents and warrants that it has the right to allow Customer to use the Skillsoft Product(s) in accordance with the provisions of this Agreement.  EXCEPT AS PROVIDED HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SKILLSOFT MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE COURSEWARE, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED. SKILLSOFT SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  SPECIFICALLY, AND NOT IN LIMITATION OF FOREGOING, SKILLSOFT DOES NOT WARRANT THAT ANY SKILLSOFT PRODUCT(S) WILL MEET CUSTOMER REQUIREMENTS OR THAT THE OPERATION OF ANY SKILLSOFT PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR FREE.

7. Termination. Either party may cancel this Agreement (a) upon written notice to the other party, if the other party commits a material breach which it fails to cure within thirty (30) days of receipt of written notice of such breach; or (b) immediately if a party has a receiver appointed, or an assignee for the benefit of creditors, or in the event of any insolvency or inability to pay debts as they become due by such party, except as may be prohibited by applicable bankruptcy laws.  If either party terminates this Agreement pursuant to (a) or (b) above, then such party reserves the right to pursue any and all rights and remedies available to it under applicable law, including, in the case of Skillsoft, collection of fees.  In addition, Customer may terminate this Agreement in accordance with the online cancellation procedures provided by Skillsoft.  Upon expiration or termination of the License Term, Customer will delete any copies of the Skillsoft Products or Skillsoft intellectual property from its computer(s) or server(s) and destroy (and certify as destroyed) or return to Skillsoft all such copies.

    

8. Skillsoft LMS Shut Down and Return/Deletion of Customer Data. Effective thirty (30) days after the termination or expiration of this Agreement, Skillsoft shall have the right to shut down any and all Customer-specific Skillsoft LMS site(s). If Customer requests Customer Data within 30 days of such termination or expiration, Skillsoft will make available to Customer an electronic copy of the Customer Data, however, any additional formatting or other work involving Customer Data shall be subject to an additional fee at Skillsoft’s then-current rates. After such 30-day period, Skillsoft shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, in accordance with Skillsoft’s internal policies. Skillsoft will not provide copies or extracts of Customer Data unless all amounts due and owing, including any subscription fees, or any other fee or charge associated with Customer’s use of the Skillsoft Products and/or services, have been paid by Customer.

    

9. Indemnities.

1. Skillsoft, at its expense, shall indemnify, defend, and hold Customer harmless from and against all claims, damages or other liabilities asserted by or payable to a third party that a Skillsoft Product infringes upon a patent, copyright, trademark, or trade secret of said third party in the United States (each, a “Product Claim”).

    

2. Customer, at its expense, shall indemnify, defend, and hold Skillsoft harmless from and against all claims, damages, or other liabilities asserted by or payable to a third party arising out of or in connection with any property, information, software, documentation, or materials provided to Skillsoft by Customer or that Skillsoft hosts on any Skillsoft Product(s) as requested by Customer (each, a “Customer Content Claim”). For the avoidance of doubt, Skillsoft assumes no liability whatsoever for any claims arising from any property, information, software, documentation, or materials provided to Skillsoft by Customer or that Skillsoft hosts on any Skillsoft Product(s) as requested by Customer.

    

3. In order to seek or receive indemnification pursuant to the provisions of this Section 9, (i) the party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing after receiving notice of any Product Claim or Customer Content Claim (a “Claim”); (ii) the Indemnifying Party shall have sole control of the defense of any action on such Claim and all negotiations for its settlement or compromise; and (iii) the Indemnified Party shall cooperate reasonably with the Indemnifying Party in the defense, settlement, or compromise of such Claim at the Indemnifying Party’s expense. The Indemnifying Party shall not be responsible for the expenses, including attorney’s fees, of the Indemnified Party incurred after the Indemnifying Party assumes defense of a Claim, but the Indemnified Party may participate therein and retain counsel at its own expense. The Indemnifying Party will not be responsible for any settlement or compromise of any Claim made by the Indemnified Party without the Indemnifying Party’s written consent. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement or compromise affecting the Indemnified Party, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of the Indemnified Party, and/or otherwise involves more than the payment of money by the Indemnifying Party, without the prior written consent of the Indemnified Party.

    

10. Limitation of Liability.

1. Neither party shall be liable for any consequential, collateral, special, incidental, indirect, exemplary, or punitive damages, including, without limitation, loss of profits or revenue, loss of use, damage, loss or destruction of data, costs of cover, or costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or its subject matter. These limitations will apply even if a party has been informed of the possibility of such damages or any other liability which cannot be excluded or limited by law.

    

2. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF ANY CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE), UNDER THIS AGREEMENT OR ARISING OUT OF OR RESULTING FROM CUSTOMER’S USE OF ANY SKILLSOFT PRODUCT(S) EXCEED THE LICENSE FEES PAID OR PAYABLE UNDER THIS AGREEMENT WITH RESPECT TO SUCH SKILLSOFT PRODUCT(S).

    

3. The limitations of liability set forth in (a) and (b) above shall not apply to (i) the parties’ respective indemnification obligations under this Agreement; (ii) damages arising out of or in connection with Customer’s breach of Section 4 of this Agreement; or (iii) any damages arising out of or in connection with Customer’s misappropriation of Skillsoft’s intellectual property rights.

11. Confidentiality. Each party agrees that it shall treat confidentially the terms and conditions of this Agreement and all information provided by each party to the other regarding its business and operations. For the avoidance of doubt, the Skillsoft Products shall be considered the confidential information of Skillsoft. All confidential information provided by a party hereto shall be used by the other party solely in furtherance of this Agreement and shall not be disclosed to any third party without the prior consent of the disclosing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes publicly available other than through a breach of this Agreement, or that is required to be disclosed pursuant to any judicial or administrative process or otherwise by applicable law. The recipient of confidential information shall immediately notify the other party of any actual or suspected unauthorized disclosure of the other party’s confidential information.  The parties agree that a breach or threatened breach of this Section 11 would result in irreparable harm to the non-breaching party, which breach would be inadequately compensated by money damages.   Accordingly, the non-breaching party may, in addition to any other legal remedies that may be available, seek injunctive relief, including without limitation preliminary injunctive relief, prohibiting or enjoining any such actual or threatened breach of this Section 11. The parties agree that the non-breaching party will not be required to post a bond in seeking such injunctive relief.

12. Compliance with Law. Each party will comply with all applicable laws and regulations in performing its obligations hereunder, including, without limitation, all U.S. and/or EU export regulations.  Contractor Services licensed under this Agreement are Commercial Computer Software under United States Federal Government Acquisition Regulations and agency supplements thereto.  Contractor Services are provided to the federal government and its agency only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial software developed at private expense and not in the public domain.  The use, duplication or disclosure by the government is subject to restrictions as set forth in subdivision (c) (1) (ii) of the Rights in Technical Data and Computer Software at DFAR 252 227-7013.  Unless exempt, Skillsoft shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, Skillsoft shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights. How Skillsoft and Skillsoft Product(s) processes personal data is governed by the Privacy Notice for Skillsoft Products (below). Notwithstanding any other provision of this Agreement, Customer agrees that Skillsoft, in its sole discretion, may take such actions as it deems necessary to remedy a breach of any provision in this Section 12.  Each party hereby agrees to indemnify and hold harmless the other party and its respective officers, directors, employees, agents, and affiliates from and against any and all claims, actions, demands, liabilities, penalties, fines, fees, costs, or expenses, including reasonable attorneys’ fees, arising out of or in connection with a party’s breach of this Section 12.

     

13. Governing Law and Venue. This Agreement shall be governed by the laws of the state of New Hampshire except its conflicts of laws rules. All claims, disputes and/or lawsuits in connection with this Agreement shall be brought in the courts of New Hampshire, and each party to this Agreement hereby irrevocably submits to the jurisdiction and venue of such courts.

     

14. Notices.  All notices given hereunder shall be in writing and delivered: (i) personal delivery; (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier, or (iv) with respect to Customer, to the email address provided by Customer. A notice shall be deemed given on the date of receipt or refusal of receipt. Notices to Skillsoft shall be sent to:

     

    Skillsoft Corporation

    300 Innovative Way, Suite 201

    Nashua, NH 03062

    Attn: Contracts Dept. Admin

     

15. Assignment. This Agreement may not be assigned by Customer without the prior written consent of Skillsoft. Any purported transfer or assignment in violation of the foregoing shall be null and void and of no force and effect.

16. Survival. Any obligations which either expressly or by their nature are to continue after the termination or expiration of this Agreement shall survive and remain in effect.

17. No Third-Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and is not intended to convey any rights or benefits to any third parties, nor will this Agreement be interpreted to convey any benefits or rights to any person except the parties hereto.

18. Publicity. Customer will be eligible to participate in Skillsoft's customer reference program which may include, but is not limited to, participation in customer case studies, press releases, collateral, and opportunities with media and industry analysts. Upon Customer’s written consent, Skillsoft may use Customer’s name in lists with other customers (including listing Customer's name on Skillsoft’s website). However, Skillsoft shall not use Customer’s name in any other promotional material (including, without limitation, online or print-based quotes, case studies, and video testimonials) without advance authorization from Customer. Except as set forth above, there shall be no public announcement of this Agreement or the relationship between the parties without mutual review and approval by both parties, except as part of required governmental filings, SEC filings, quarterly earnings announcements, and/or financial presentations.

19. Relationship of the Parties. The relationship of Skillsoft and Customer established by this Agreement is of licensor and licensee, each to constitute an independent contractor. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in this Agreement, each party does not grant the other party the power or authority to make or give any agreement, statement, or other commitment on behalf of it.

20. Force Majeure. With the exception of payment obligations, a party shall not be liable to the other for any loss or damage resulting from any delay or failure of the Skillsoft Product(s), or any part thereof, or its ability to perform its obligations hereunder, in any respect, if such delay or failure is caused, in whole or in part, by events beyond its control. Such events include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorist acts, governmental actions, floods, earthquakes, epidemics, natural disasters, fires, and explosions.

21. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter thereof and its provisions shall take precedence over all prior and/or contemporaneous discussions, proposals, agreements, and/or nondisclosure agreements, whether written or oral. Any amendment to this Agreement must be in writing and signed by Customer and an authorized representative of Skillsoft. Any terms or conditions contained in any Customer purchase orders or other documents shall be void and of no force or effect. The failure or delay by either party in exercising any right or remedy hereunder shall not operate as a waiver of any such right or remedy. Waiver by either party of any default shall not waive any prior, concurrent, or subsequent defaults by the other party. If any provision herein is held invalid or unenforceable by a court of competent jurisdiction, then such provision shall, to the extent of such invalidity or unenforceability, be severed. All other provisions shall continue in full force and effect and shall be construed so as to best effectuate the intention of the parties in executing it. This Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

By electronically accepting the terms of this Agreement, you are agreeing to its terms and conditions.