EXHIBIT D
FOCUS LEARNING CORPORATION
END-USER LICENSING AGREEMENT
This End-User Licensing Agreement (“End User Agreement”) is made this ________ day of ___________________, 2024 between Focus Learning Corporation (Focus), a California corporation, herein referred to as "Licensor",HSI Workplace Compliance Solutions, Inc, a Washington company herein referred to as “HSI” or “Service Agent” (as defined in section 1.14 below), and the City of Santa Clara, herein referred to as "Licensee" as part of the SAT Advantage program (as defined in section 1.13 below).
ARTICLE 1. DEFINITIONS
1.01. “VISION” – a short term for the software, data and database product called the “VISION Learning and Performance Support System” which is a subject of this End User Agreement. It consists of a set of Modules and a Database Schema. VISION requires an appropriate license to Oracle database software or Microsoft SQL (referred to herein as the database) in order to operate, neither of which are included in VISION.
1.02. “Module” – an interrelated component of VISION. Each module operates with one or more other related modules to perform a prescribed set of functions.
1.03. “Database Schema” – an interrelated component of VISION defining the organization of data in the database including the specification of the types of data that may enter the database including the tables, fields, relationships, views, indexes, packages, procedures, functions, queues, triggers, types, sequences, materialized views, synonyms, database links, directories, XML schemas, clusters, snapshots, and other elements.
1.04. “VISION Database” – data organized in accordance with the Database Schema by the database.
1.05. “Developer Module” – an instructional systems development (ISD/SAT) process management platform. The Developer Module is used by instructional designers, course developers, instructors and others to carry out the analysis, design and development activities that underlie a performance-based approach to training and qualification. Such activities are core to the Systematic Approach to Training (SAT) process and standards prescribed by INPO (Institute of Nuclear Power Operators), NERC (North American Electric Reliablity Corporation), the Federal Aviation Administration (FAA), the Pipeline and Hazardous Materials Safety Administration (PHMSA) and others where training design integrity is critical for safe and efficient operations.
1.06. "Learning Station Module" – The Learning Station Module is a web application included as a Module of VISION. The Learning Station generates and delivers lessons, exams and qualification cards and other online learning materials, which are compiled directly from VISION, and tracks learner training status. The Developer Module is required in order to use the Learning Station Module.
1880 Santa Barbara Street, Suite 120
San Luis Obispo, CA 93401
(805) 543-4895
Fax (805) 543-4897
1.07. "Source Code" - the set of program instructions that software engineers or programmers produce in order to dictate how the Developer Module and Learning Station Module look, interact with user commands, and process information.
1.08. "Object Code" - the program code which is installed on a server or on one or more workstations enabling users to operate the Developer Module and the Learning Station Module.
1.09. "Server" - a computer and associated software that allows multiple users to access and use VISION through a network and an internet/intranet.
1.10. "Manual" - a set of written documentation designed to explain how to operate the Developer Module and the Learning Station Module and to create customized exams, reports, and other materials. “Manual” also refers to VISION’s embedded instructional advisor, which helps users perform instructional design functions and make key instructional decisions. Manuals may be in hard copy form or reside only in the Developer Module and the Learning Station Module and be printable by a user.
1.11. "Hardware" - Computers with Microsoft Windows operating system which act as a server for VISION. The hardware shall include TCP/IP and Internet Explorer for Client Browsers.
1.12. “Hosted” – refers to the approach wherein the installation, use and maintenance of the program is done through a server outside the Licensee firewall and provided by Licensor. A hosted solution is one where the Licensor provides the server, installs and services the software and provides a means for Licensee users to connect from Licensee location.
1.13. “SAT Advantage” – refers to an HSI program wherein HSI provides SAT services to electric and gas utilities who store their SAT program materials in a VISION Database.
1.14. “Service Agent” – refers to HSI, who will perform the following roles for the Licensor and the Licensee associated with the SAT Advantage program. Service Agent does not warrant or have responsibility for the VISION application. Service Agent will perform the following:
1.14.01 Annual invoicing for Licensee’s use of SAT Advantage and the VISION application in accordance with the payment terms of the separate Agreement for Services Between the City of Santa Clara and HSI Workplace Compliance Solutions, Inc. (“Services Agreement”). Upon Licensee’s payment of any applicable license fees set forth in the Services Agreement, Service Agent will make payment to Licensor for the Licensee’s use of VISION during the course of the Services Agreement. If Service Agent fails to make payment as required in the preceding sentence, Service Agent shall be in breach of the Services Agreement.
1.14.02 Act as the customer service liaison between the Licensee and Licensor to help facilitate Licensee’s use of VISION in connection with the SAT Advantage program.
Licensee will inform Service Agent of issues with the ability to use VISION or VISION Learning Station and Service Agent will work with Licensee and Licensor to resolve the issues.
1.14.03 Coordinate and track any issues received from Licensee that may require the Licensor to make modification to the VISION or VISION Learning Station applications, provided that only the Licensor can consent to the making of any modifications to VISION. This may include tracking suggestions for improvements and enhancements to the applications to support the Licensee.
ARTICLE 2. LICENSE GRANT AND LIMITATIONS
2.01. Licensor hereby grants, and Licensee hereby accepts, a non-exclusive license to use the Developer Module and Learning Station Module, subject to the conditions specified herein. Licensor will provide Licensee with the Developer Module and Learning Station Module as a Hosted system. Source Code will not be provided. This license is for a period beginning the date of execution and ending when terminated pursuant to the terms in Section 5 of this End User Agreement.
2.02. The Database Schema is intellectual property of Licensor and Licensor hereby grants, and Licensee hereby accepts, a non-exclusive license to use the Database Schema solely to interoperate with the Developer Module and Learning Station Module, as necessary to enjoy the license rights granted hereunder. Connection to the VISION Database may only be established by the Developer Module and Learning Station Module, as necessary to enjoy the license rights granted hereunder. The Database Schema may not be modified by the Licensee.
2.03. Licensee shall use the Developer Module from a server hosted and maintained by Licensor with one (1) named user, provided that all users are associated with the Licensee.
2.03.01. Licensee’s use will be limited to one Licensee-specific project created by Service Agent for Licensee within the VISION Database.
2.03.02. Licensee understands and agrees that personnel from Service Agent and Licensor will have access to Licensee’s training material in the VISION Database to administer the SAT Advantage program and maintain the VISION software.
2.04. Licensee may also use the Learning Station module(s) subject to the following.
2.04.01. Licensee use of the VISION Learning Station Module shall be for one Licensee Site Administrator and 20 named licenses initially. If the Licensee purchases additional Site Administrator and/or named licenses from the Service Agent, this total will be communicated to the Licensor. The Licensor will ultimately bill the Service Agent for any additional licenses pursuant to Section 1.14.01. The addition of Licensee Site Administrator and named licenses will be reflected in the Services Agreement and will not require an amendment to this End User Agreement.
2.04.02 Licensee use of the VISION Learning Station Module shall be limited to Licensee’s- organization.
2.05. Licensee shall not use or permit the use of the Developer Module, or Learning Station Module to create, manipulate or maintain programs for any other purpose other than as described in sections 2.03 and 2.04.
2.06. Licensee may use the Manuals, including the on-line help and "advisors", for Licensee's internal use only. All copies of the Developer Module and Learning Station Module, and the Manual(s) shall contain Licensor's proprietary notices to the extent the same are included in the Developer Module and Learning Station Module originally delivered to Licensee.
ARTICLE 3. PROPERTY RIGHTS
3.01. Licensee agrees and acknowledges that Licensor is and shall remain the sole owner of the Developer Module and Learning Station Module and shall be the owner of all copies thereof made by Licensee.
3.02. Licensee agrees not to sell, rent, license, sub-license, distribute or transfer the Developer Module and Learning Station Module or any part thereof to any other person or party.
Licensee agrees not to modify the Developer Module and Learning Station Module. Licensee agrees to use all reasonable care and diligence in preventing any part of the Developer Module and Learning Station Module, including but not limited to the Object Code, from being (a) copied into any medium for use anywhere other than the above described site, or (b) used in any way by personnel not authorized under the terms hereof. Disclosure of the fact that Licensee is using the Developer Module and Learning Station Module shall not be a violation of this provision.
3.03. Licensee agrees to keep VISION under access and use restrictions designed to prevent access by unauthorized persons.
3.04. Licensee agrees not to remove, deface or destroy any copyright, patent notice, trademark, service mark or other proprietary markings or confidential legends placed on or within the program software or documentation.
ARTICLE 4. WARRANTY, WARRANTY SERVICE AND LIMITATION OF LIABILITY
4.01. Licensor shall verify and correct errors in the Developer Module and Learning Station Module, without charge for labor, for a period of ninety (90) days after acceptance of the Developer Module and Learning Station Module by Licensee. The Developer Module and Learning Station Module shall be deemed to be accepted by Licensee upon completion of installation and on-site training as set forth above. If Licensee notifies Licensor of any program errors or if Licensor believes that program errors may exist, Licensor will correct such error s within twenty (20) days after notification. If an error cannot be corrected within said twenty (20) day period, Licensor will provide a minimum of five (5) man-hours per day to correcting such program errors until the program error is corrected. Error corrections will be in machine readable form which can correct the program error immediately. If the error is not in the Developer Module and Learning Station Module, Licensor may quote Licensee for any labor costs in correction of the error. Any further program maintenance shall be the subject of a separate maintenance agreement or purchase order issued by the City. Licensee agrees that Licensee's sole and exclusive remedy for warranty claims shall be limited to this corrective action.
4.02. Licensee agrees that Licensor's sole liability to Licensee for any errors in the Developer Module and Learning Station Module shall be limited to damage to the VISION Database produced as a result of the use of the Developer Module and Learning Station Module with the VISION Database, and Licensor's liability shall further be limited to a maximum of three (3) full working days (i.e., eight (8) hours) of data entry services at Licensor’s sole cost and expense to the extent necessary to restore the VISION Database to a working condition.
4.03. Licensor, at its own expense, shall defend Licensee against any claim that the Developer Module and Learning Station Module infringe or misappropriates any patent, copyright, trade secret or other proprietary right enforceable in the United States, and shall indemnify and hold harmless Licensee from and against any loss, liability, damages, cost, and expense (including reasonable attorney fees) incurred by Licensee as a result thereof.
4.04. Licensor warrants and represents that it has good title to the Developer Module and Learning Station Module and the right to license its use to Licensee free of any proprietary rights of any other party.
4.05 Licensor warrants that the Developer Module and Learning Station Module do not and shall not contain any lock, clock, timer, counter, copy protection feature, replication device or defect ("virus" or "worm" as such terms are commonly used in the computer industry), CPU serial number reference, or other device which: (i) might lock, disable or erase the software; (ii) prevent Licensee from fully using the Developer Module and Learning Station Module in accordance with this End User Agreement; or (iii) require action or intervention by Licensor or any other person or entity to allow Licensee to use the Developer Module and Learning Station Module on the hosted system. In no event shall Licensor insert, activate or operate, nor attempt to insert, activate or operate, any such device.
4.06 THE EXPRESS WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Under no circumstances shall either party be liable to the other, or any other person or entity, for indirect, special, incidental or consequential damages, loss of goodwill or business profits even if they have been notified of the possibility of such damages.
ARTICLE 5. TERMINATION
5.01. Licensor may terminate this End User Agreement in the event of a material breach by Licensee of Licensee’s payment or nondisclosure obligations under this End User Agreement .
5.02. Licensee may terminate this End User Agreement by giving written notice thereof to Licensor. Licensor shall allow City the ability to cancel and not renew the SAT Advantage tool service by providing written notice no less than 30 days prior to the annual billing date.
5.03. Upon termination of this End User Agreement for any reason, Licensee shall immediately return all copies of the Developer Module and Learning Station Module to Licensor and certify under penalty of perjury that all copies have been returned. Upon termination of this End User Agreement, Licensor's obligations hereunder shall terminate.
5.04 This End User Agreement shall terminate upon the termination of the Services Agreement.
ARTICLE 6. MISCELLANEOUS
6.01. Should any litigation or other proceeding be commenced between the parties to this license, the party prevailing in such litigation or proceeding shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorney's fees in such litigation or proceeding.
6.02. Any notice required or permitted by this End User Agreement to be given to either party shall be deemed to have been given if in writing and delivered personally or mailed by first - class registered or certified mail, postage prepaid and addressed to the party at the following addresses:
Licensee: Licensor:
The City of Santa Clara, California, acting by
and through Silicon Valley Power (SVP)
Attn: City Manager
1500 Warburton Ave
Santa Clara, CA 95050
[email protected] and
[email protected]
Focus Learning Corporation
Attn: Jay Steele
P.O. Box 1771
1880 Santa Barbara
San Luis Obispo, CA 93401
And to HSI:
Health and Safety Institute
Attn: Mark Striefel or Scott Jensen
6136 Frisco Square Blvd Suite 285
Frisco, TX 75034
6.03 No Assignment. Subject to the following exceptions and provisions, neither party shall assign, delegate, sell, sublicense, or otherwise transfer its rights or obligations (by contract, operation of law, or otherwise) under this End User Agreement without the prior written consent of the other party.
6.04 Change in Ownership. Either party may transfer, assign and delegate all o f its rights and obligations under this End User Agreement including all associated software license and maintenance rights and documentation, without the other party's consent and without payment of additional fees or charge, to:
(i) a purchaser of all or substantially all of the assigning party's voting stock or capital assets;
(ii) an entity with which the assigning party consolidates or merges; (iii) any wholly-owned subsidiary of the assigning party; or (iv) any new entity that acquires one or more business units or divisions or facilities of the assigning party, including all rights and obligations under this End User Agreement, if such purchaser, entity or subsidiary agrees in writing to be bound by these terms and conditions.
6.04. Licensor and Licensee agree that no failure to exercise, and no delay in exercising any right, power or privilege hereunder on the part of either party shall operate as a waiver of that right, power or privilege.
6.05. Licensee and Licensor acknowledge and agree that this End User Agreement is the complete and exclusive statement of the mutual understanding of the Licensee and Licensor relating to the subject matter of this End User Agreement and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this End User Agreement. The Licensee and Licensor further agree that any modification or addition to this End User Agreement can only be made through a written agreement signed by both Licensor and Licensee. Notwithstanding anything to the contrary in the End User Agreement, this End User Agreement shall not apply to the “Services” set forth in Services Agreement.
6.06. This End User Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California. If any provision of the End User Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that the End User Agreement shall otherwise remain in full force and effect and enforceable.
6.07. In the case of Force Majeure preventing or hindering either party from performing its obligations under this End User Agreement, such Force Majeure shall not constitute a breach or default under this End User Agreement provided that: (i) the party prevented or hindered from performing (the "Affected Party") shall give written notice to the other party (the “Non- Affected Party"), as soon as practically possible, containing reasonable particulars of the Force Majeure in question and the effect of such Force Majeure as it relates to the obligations of the Affected Party; and (ii) the Affected Party works diligently to correct the reason for such delay, excuses performance by the Non-Affected Party during the period of such delay.
[SIGNATURES ON FOLLOWING PAGE]
Executed on the day and date first above written.
LICENSOR: LICENSEE:
FOCUS LEARNING CORPORATION City of Santa Clara, California a California corporation a chartered California municipal corporation
by: ___________________________ by :_________________________________ Jay Steele, CEO Jovan Grogan
City Manager
HSI: Approved as to Form:
HSI Workplace Compliance Solutions, Inc,
by:__________________________________ by : _________________________________ A Washington corporation Glen R. Googins
City Attorney
by: ___________________________
Duane Tumlinson
Title Vice President, Sales Operations