SPS License Agreement
By downloading resources from the SPS website, you agree to the SPS license agreement posted below. Please review this for your reference prior to downloading resources.
PLEASE READ CAREFULLY
This material contains proprietary material and information, the use of which is subject to and expressly conditioned upon acceptance of this License Agreement (“Agreement”).
This Agreement is a legally binding document between you (meaning the individual person or the entity that the individual represents that has obtained the material for its internal productive use and not for outright resale) (“Customer”) and Strategic Prevention Solutions. Unless Strategic Prevention Solutions agrees otherwise in writing, this Agreement governs Customer’s use of the materials.
By proceeding with the installation, downloading, use or reproduction of this material, or authorizing any person to do so, you are representing to Strategic Prevention Solutions that you are: (i) authorized to bind the Customer; and (ii) agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter in this Agreement and are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability and validity of this Agreement.
If you do not have authority to agree to the terms of this Agreement on behalf of the Customer, or do not accept the terms of this Agreement on behalf of the Customer, immediately cease any further attempt to install, download or use this material for any purpose, and remove any partial or full copies made from this material.
This License Agreement is entered into by the customer and Strategic Prevention Solutions, an Alaskan corporation (“SPS”), and describes the terms and conditions pursuant to which SPS will license to Customer its worksheets and related works, training materials, or other documents developed by SPS (collectively, “SPS IP”) Collectively, Customer and SPS shall be referred to as “Parties” and individually as a “Party.”
In consideration of the mutual promises, covenants and representations herein, and upon the terms and conditions set forth below, the Parties agree as follows:
1.1 Grant. Subject to the terms and conditions of this Agreement, SPS grants to Customer a limited, nonexclusive, worldwide, nontransferable license in SPS IP in perpetuity.
1.2 Additional License Rights. Customer may expand the license granted under this Agreement, upon SPS’s receipt and acceptance of such expanded terms, and upon Customer’s payment of any license fees that may be applicable for such expanded scope.
1.3 License Restrictions. Except as otherwise set forth in this Agreement, Customer shall not itself, or through any affiliate, employee, consultant, contractor, agent or other third party:
1.1.1 sell, resell, distribute, lease, rent, license or sublicense, in whole or in part, the SPS IP;
1.1.2 decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive the specifications or other elements of the SPS IP, in whole or in part, for commercial or competitive purposes or otherwise;
1.1.3 allow access, provide, divulge or make available the SPS IP to any person other than Customer’s employees and independent contractors who have a need for such access and who shall be bound by a written nondisclosure agreement with provisions that are no less restrictive than the terms of this Agreement;
1.1.4 modify, adapt, translate or otherwise make any changes to the SPS IP, or any part thereof;
1.1.5 use any name, mark or designation of SPS, any of its affiliates or licensors or their respective products or services, unless expressly permitted herein or by SPS in writing; or
1.1.6 otherwise use or copy the SPS IP except as expressly permitted herein.
2.0 Disclaimers and Limitations of Liability
2.1 Disclaimer. Customer acknowledges that no employee, agent, representative or affiliate of SPS has authority to bind SPS to any oral representations concerning the SPS IP, or any other product or service provided to Customer hereunder. Any written representation or warranty not expressly contained in this Agreement is expressly disclaimed and is not enforceable. Except as set forth in this Section 2, SPS makes no warranties, whether express, implied, or statutory regarding or relating to the SPS IP or any other materials or services provided to Customer hereunder. SPS HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SPS IP AND OTHER MATERIALS PROVIDED TO CUSTOMER HEREUNDER. SPS DOES NOT REPRESENT OR WARRANT THAT THE SPS IP OR ANY OTHER MATERIALS PROVIDED BY SPS WILL BE ERROR-FREE, PERFORM IN AN UNINTERRUPTED MANNER, OR THAT SPS WILL CORRECT ALL ERRORS.
2.2 Limitation of Liability. IN NO EVENT WILL SPS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE SPS IP, ANY OTHER MATERIALS PROVIDED BY SPS OR OTHER SERVICES PERFORMED BY SPS, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF SPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SPS’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED AND NOT EXCEED ITS OBLIGATIONS TO INDEMNIFY CUSTOMER AS SET FORTH IN SECTION 3 HEREIN.
3.1 Customer Indemnity. SPS shall indemnify, defend and hold Customer harmless against any action, suit or proceeding brought against Customer alleging that the SPS IP infringes any copyright or misappropriates any trade secret of any third party and shall pay any final judgments awarded or settlements entered into and agreed to by SPS; provided, that Customer gives prompt written notice to SPS of any such action, suit or proceeding and gives SPS the authority to proceed as contemplated herein. SPS shall have the exclusive right to defend any such action, suit or proceeding and make settlements thereof at its own discretion, and Customer may not settle or compromise such action, suit or proceeding, except with the prior written consent of SPS. Customer shall give such assistance, cooperation and information as SPS may reasonably require to defend, settle or oppose any such action, suit or proceeding.
3.2 Remedy. In the event any such infringement action, suit or proceeding is brought or threatened, SPS may, at its sole option and expense: (i) procure for Customer the right to continue use of the SPS IP or the allegedly infringing part thereof; (ii) modify or amend or replace the same with other material having substantially similar functionality and performance; or (iii) if neither of the foregoing is commercially practicable as determined by SPS in its sole discretion, SPS shall have the right to terminate the license for the SPS IP involved, and if applicable, repay to Customer a portion, if any, of any license fees paid by Customer equal to the amount paid by Customer for any additional license rights that have been negotiated and agreed upon by the Parties, less a prorated amount for any unused days and months during that period at the time of termination.
3.3 Exclusions. The foregoing obligations set forth in this Section 3 shall not apply to the extent the action, suit or proceeding for infringement and/or misappropriation arises or results from (i) modifications to the SPS IP made by any party other than SPS or SPS’s authorized representative, (ii) use of the SPS IP beyond the scope of or not in compliance with its intended use, (iii) breach of this Agreement by Customer, (iv) combination of the SPS IP with other products, processes or materials to the extent the alleged infringement relates to such combination, or (v) where Customer continues the allegedly infringing activity after being notified thereof and is provided modifications, replacements or other remedies that would have avoided the alleged infringement.
3.4 Limitation. This Section 3 states the entire liability of SPS with respect to infringement of any intellectual property right.
3.5 SPS Indemnity. Customer shall indemnify, defend and hold harmless SPS from and against any action, suit or proceeding for infringement and/or misappropriation that arises or results from any of the exclusions set forth in Section 3.3 above.
4.1 Ownership. SPS retains sole and exclusive ownership of the SPS IP and all intellectual property rights in, to and/or embodied in or associated with the SPS IP provided by SPS hereunder, and all copies and derivative works, adaptations, modifications and translations thereof (whether developed by SPS, Customer or a third party). All rights not expressly granted in this Agreement are reserved by SPS.
5.0 Term and Termination
5.1 Term. This Agreement shall take effect on the date of Customer’s acceptance of this Agreement and shall remain in force in perpetuity unless earlier terminated by SPS.
5.2 Termination by SPS. SPS may, by written notice to Customer, terminate this Agreement effective immediately for Customer’s breach of any provision of this Agreement or at SPS’s convenience.
5.3 Effect of Termination. Sections 2, 4, and 6 shall survive expiration or any termination of this Agreement for as long as necessary to permit their full discharge. On and after the effective date of termination of this Agreement (or after the effective date of expiration of any license period agreed to by the Parties), all of Customer’s rights to the SPS IP and other materials provided by SPS, granted under this Agreement or any other agreement and its rights to any related support and other services shall immediately cease. No later than 30 days after the effective date of termination, expiration or discontinuance of this Agreement or any other agreement for any reason whatsoever, Customer shall return or destroy, at SPS’s option, all copies, in any medium, of the SPS IP (including the other materials provided to Customer by SPS). Customer shall furnish SPS with a certificate signed by an authorized officer of Customer verifying that the above has been done. Further, for any additional license rights that the Parties may have agreed upon and where Customer has agreed to pay SPS a license fee for said expanded rights, Customer shall compensate SPS for all SPS IP delivered and services actually performed as of the effective date of termination of this Agreement, as applicable.
6.1 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger, consolidation or similar transaction, each which shall be considered an assignment for purposes of this section, without the prior written consent of SPS. Any assignment by Customer without SPS’s prior written consent is null and void. SPS may, without consent, assign and delegate its rights and obligations under this Agreement without restriction. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
6.2 Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below:
6.2.1 Strategic Preventions Solutions, Attn: IP Request, PO Box 22046, Juneau, AK 99802
6.2.2 Notices shall be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above or 1 day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected.
6.3 Independent Parties. The Parties will at all times be independent contractors and will so represent themselves to all third parties. Neither Party has granted the other Party the right to bind it in any manner whatsoever, and neither Party shall hold itself out as entitled to do the same. Nothing herein will be deemed to empower either Party to be the agent or legal representative of the other nor to constitute the Parties as partners, co-owners, or joint venturers.
6.4 No Third-Party Beneficiary. This Agreement will not confer any rights or remedies upon any person or entity other than SPS, Customer and their respective heirs, executors, successors and assigns.
6.5 Force Majeure/Delays. Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section 6.5. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or explosions, but the inability to meet financial obligations is expressly excluded. Further,in no event shall SPS be in breach of this Agreement or be responsible for delays in performance of its obligations hereunder to extent caused by Customer’s failure or delay in performing its obligations hereunder or taking such other action or inaction which causes in whole or in part a delay of SPS’s performance.
6.6 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by either of the Parties hereto of a breach or of a default under any of the provisions of this Agreement shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any Party may otherwise have at law or in equity. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such Party’s rights under this Agreement and shall not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action.
6.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that shall preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.
6.8 Integration. This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all communications, representations, understandings and agreements before the date of Customer’s acceptance of this Agreement, either oral or written, between the Parties with respect to said subject matter. This Agreement may not be amended, supplemented or modified except in writing signed by both Parties.
6.9 Other Documents. No terms, provisions or conditions of any other document that Customer may use in connection with the licensing of the SPS IP will have any effect on the rights, duties or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of SPS to object to such terms, provisions or conditions.
6.10 Counterparts. This Agreement, any exhibits or attachments hereto and any other agreement, instrument or document associated with and incorporated by reference in this Agreement, may be executed in counterparts, each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same agreement.
6.11 Governing Law. This Agreement shall be interpreted and construed in accordance with the laws of the State of Alaska and the United States of America, without regard to conflict of law principles. The Parties hereby consent to the exclusive jurisdiction of the State Courts located in Juneau, Alaska or the United States District Court for the District of Alaska and any courts of appeal therefrom, and waives any objection on the grounds of lack of jurisdiction (forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts for resolution of any disputes arising out of or related to this Agreement.