Training and License Agreement

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.     Definitions.

a.     “Authorized User” means (i) you, if you are an individual, and (ii) each employee and contractor for which you purchase any Services, if you are a Sponsor.

b.     “Customer Portal” means the digital platform used by Licensor to enable you to purchase Services, review purchase and Services use information made available by Licensor, and access and use Training Materials made available by Licensor, all as set forth in this Agreement. 

c.     “Order” means the online or physical ordering document, form, or mechanism, made available by Licensor for the purchase of any Services for Authorized Users. 

d.     “Services” means provision by Licensor of Training and access to and use of Training Materials in accordance with this Agreement. 

e.     “Sponsor” means you, if you are a legal entity.  A Sponsor may purchase Services for use by Authorized Users who are the Sponsor’s employees or contractors.  For clarity, a Sponsor is not permitted to use any Services.

f.      “Training” means the training sessions and training modules provided or made available by Licensor to Authorized Users pursuant to this Agreement. 

g.     “Training Materials” means the downloadable and non-downloadable content and Training made available by Licensor to Authorized Users in the Customer Portal. 

2.  User Account.

Licensor shall provide to you the necessary authentication credentials or mechanisms to establish credentials (“Authentication Credentials”) to allow you to access the Services in accordance with this Agreement.  You shall promptly notify Licensor in the event of any loss, misuse or unauthorized access to any Authentication Credentials.  Your account is for your use only and cannot be shared or used by anyone else.  If you are a Sponsor, each Authorized User for which you purchase the Services must also agree to this Agreement and establish an account with Licensor.  You are solely responsible for maintaining the confidentiality of your username and password, and you are entirely responsible for any and all activities under your account.  You agree to notify Licensor immediately of any unauthorized use or any other breach of security involving your username, password or account.  Licensor will not be liable for any loss incurred as a result of an unauthorized use of a username/password or account.  You warrant that you have all rights, consents, and permissions necessary to provide any information that you provide to Licensor in relation to the Services and for Licensor’s use as set forth or contemplated in this Agreement.  Licensor may suspend the account of any Sponsor or Authorized User at any time if Licensor reasonably believes there has been or there is likely to be a breach of any of the licensing provisions of this Agreement, a violation of Licensor’s or any third party’s intellectual property or proprietary rights, an allegation by a third party that any aspect of the Services or the Training Materials violates the intellectual property or other rights of a third party, or a security issue, or non-payment of any fees owed by a Sponsor or Authorized User under Section 7, or any other breach of this Agreement.

3.  Training.

Subject to the terms and conditions of this Agreement, Licensor will, during the Term, provide the Training specified in an Order for the Authorized Users identified in the Order.  You acknowledge and agree that purchasing or participating in any Training does not guarantee or ensure that you will pass any examination or that you will receive any certification.  Licensor makes no guarantee, warranty or promise that the Training Materials are accurate or complete, or that you will pass any examination or receive a certification of any kind.  Any reliance by you on the information in the Training Materials is solely at your risk, and Licensor shall not be liable to you for any such reliance by you or for any failure by you to pass an examination or receive a certification.    

4.  License.

4.1           Grant of Rights.  Subject to the terms and conditions of this Agreement (including, without limitation, payment of all applicable fees), Licensor hereby grants, during the Term (as defined below), a limited, non-exclusive, non-transferable, non-sublicensable license in the United States of America, to:

(a)            you and each Authorized User to access the Customer Portal for the sole purpose of purchasing Services, viewing information, and accessing the Training Materials made available by Licensor concerning purchases and Authorized User use of the Services; and

(b)            each Authorized User to (i) view non-downloadable Training Materials, and (ii) view, download and print one copy of downloadable Training Materials, in each case solely for the Authorized User’s personal non-commercial use to study and prepare for the CMMC certification exam to which the Training Materials relate.

4.2           Restrictions.  Authorized Users shall not (i) make any Training Materials available to other individuals or entities, (ii) use the Training Materials other than as expressly permitted in this Agreement, (iii) permit any use of the Training Materials by any other person or entity, (iv) modify or create derivative works from the Training Materials, or (v) combine any Training Materials with any other content. 

4.3           Third-Party Rights.  Notwithstanding any other provisions of this Agreement to the contrary, nothing in this Agreement will be deemed to be a grant by Licensor of a license, sublicense, or other grant of a right to Authorized Users to use any third-party rights or any rights under any third-party license that cannot be licensed, sublicensed, or granted without the consent, approval, or agreement of another party, unless such consent, approval, or agreement is first obtained by Authorized User.  Nothing in this Agreement grants, or will be deemed to grant, Authorized User any license, sublicense, or other right to use third-party rights or content embedded within any Licensor IP.  Any Authorized User wishing to use such third-party content outside the scope of this Agreement is solely responsible for obtaining any necessary third-party consents at its own cost, and no such consent will expand the license granted by Licensor under this Agreement.

4.4           Reservation of Rights.  No right or interest in the Customer Portal, the Services, the Training Materials, or any Licensor trademarks (collectively, “Licensor IP”) is granted to you except as expressly provided in this Agreement, and Licensor reserves all rights not expressly granted to you under this Agreement.

4.5           Sponsor Responsibility.  If you are a Sponsor, then in addition to your other obligations under this Agreement, you are responsible for ensuring compliance with this Agreement by each Authorized User for which you purchase any Services, and you shall be responsible and liable for the acts and omissions of such Authorized Users.  Any act or omission by any such Authorized User that would constitute a breach of this Agreement if performed by you shall be deemed to be a breach of this Agreement by you.

5.          Other Restrictions.

You shall not do any of the following:

5.1           Access or use any Licensor IP except solely as permitted herein;

5.2           Copy (except as expressly permitted herein), translate, recast, edit, alter, or reverse engineer, or decompile, disassemble, derive the source code of, or create derivative works from, any Licensor IP;

5.3           License or provide any access to or use of any Licensor IP to any other person or entity;

5.4           Access or use any Licensor IP for time-sharing or service bureau purposes;

5.5           Provide to any other person or entity your username, password or other Authentication Credentials used for accessing or using the Customer Portal or any Training Materials.

5.6           Remove, alter or obscure any copyright or trademark notices in or on the Licensor IP;

5.7           Interfere with or disrupt any other user’s use or enjoyment of the Services;

5.8           Attempt to circumvent or avoid any technical limitations in the Customer Portal or in any Training Materials; or

5.9           Provide Licensor with any information about another person or entity prior to your obtaining all necessary rights and permissions to provide that information to Licensor for Licensor’s use in providing Customer Portal and Services.

6.          Updates and New Versions.

If Training Materials are updated during the Term to make corrections or minor changes, Licensor will make the updated Training Materials available to Authorized Users without additional charge.  If Licensor determines, in its sole discretion, that changes to Training Materials are substantial enough to require a new version during the Term, you will be required to pay for the new version in accordance with the then-current fees for such new version as posted on Licensor’s website prior to accessing or using the new version of the Training Materials, unless you have already purchased the ability to receive access to and use of new versions of Training Materials. 

7.          Payment.

You shall pay Licensor the then-current fees set forth on Licensor’s website, located at https://www.hivesystems.com/booking at the time of your Order, for the Services included in your Order.  Payment shall be by credit card or as otherwise directed by Licensor.  For clarity, if the Services are being purchased for your use by a Sponsor, then you do not have an obligation to pay the purchase fees; however, your use of any Services or Training Materials is subject to payment in full of all fees by the Sponsor.  Except as expressly provided otherwise herein or required by law, all fees are non-refundable. 

8.          Ownership and Protection. 

8.1           Acknowledgment of Ownership.  Except for the licenses expressly granted to you in this Agreement, you acknowledge that all right, title, and interest in and to the Customer Portal, the Services, the Training Materials, and the Licensor trademarks (collectively, "Licensor IP," as defined in Section 4.4), together with all modifications or improvements thereto, are owned by and shall remain with Licensor.  If you acquire any rights in any Licensor IP by operation of law or otherwise, you hereby irrevocably assign such rights to Licensor without further action by either Party.".

8.2           Protection of the Training Materials.  For purposes of this Section 8.2, obligations imposed on Authorized User apply equally to you where you are a Sponsor.

(a)            Notification.  Authorized User shall, at its sole expense, use all commercially reasonable measures to protect and safeguard any Training Materials in its care, custody or control.  You shall immediately notify Licensor in writing with reasonable detail of any: (i) actual, suspected, or threatened infringement of the Training Materials; (ii) actual, suspected, or threatened claim that use of the Training Materials infringes the rights of any third party; or (iii) other actual, suspected, or threatened claim to which the Training Materials may be subject.

(b)            Actions.  With respect to any of the matters listed in Section 8.2(a): (i) Licensor has exclusive control over, and conduct of, all claims and proceedings; (ii) you shall provide Licensor with all assistance that Licensor may reasonably require in the conduct of any claims or proceedings; and (iii) Licensor shall bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account.

8.3           Feedback.  If you provide any ideas, suggestions, enhancement requests or other feedback concerning the Services or any Licensor IP (collectively, “Feedback”), you hereby grant to Licensor a worldwide, transferrable, irrevocable, perpetual, sub-licensable and royalty-free license to use and fully exploit all such Feedback without any obligation of attribution or payment of any consideration to you.

9.          Equipment.

You are solely responsible for, and you shall ensure you have and maintain, all equipment and other resources (including, but not limited to, internet connection and bandwidth) necessary to connect to and use the Customer Portal and to access, view, hear and (where permissible) download the Training Materials.

10.        Confidentiality.

From time to time, Licensor may disclose or make available to you information about its business affairs, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including business operations and strategies, marketing, creative elements, visual representations, research material and data, specifications, processes, and technological developments, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information").  Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by you; (b) is or becomes available to you on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of you before being disclosed by or on behalf of Licensor; or (d) was or is independently developed by you without reference to or use, in whole or in part, of any of Licensor's Confidential Information.  You shall: (i) protect and safeguard the confidentiality of Licensor's Confidential Information with at least the same degree of care as you would protect your own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use Licensor's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except: (A) to your officers, employees, agents, consultants, and legal advisors who need to know the Confidential Information to assist you, or act on your behalf, to exercise your rights or perform your obligations under the Agreement; or (B) pursuant to applicable federal, state, or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that you shall first provide Licensor with: (1) prompt written notice of such requirement so that Licensor may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at Licensor's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

11.        Representations and Warranties.

11.1        Your Representations and Warranties.  You represent and warrant that you will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of Licensor or any Licensor IP, or cause confusion as to the ownership of the Licensor IP.  You further represent and warrant that (a) you will use the Services and Training Materials only for lawful purposes and in compliance with this Agreement, and (b) any information or content you provide to Licensor does not infringe or violate the rights of any third party.

11.2        Disclaimer of Representations and Warranties.  All SERVICES AND TRAINING MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS.  LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND THE TRAINING MATERIALS, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  Licensor does not warrant or guarantee the uninterrupted availability or security of the Customer Portal, and Licensor will not be liable for any unauthorized access to, or disclosure of, data resulting from a security incident affecting the Customer Portal, except to the extent caused by Licensor's gross negligence or intentional misconduct

12.        Indemnification.

12.1        Indemnification.  You shall indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, permitted assigns, and licensees (each an "Indemnified Party") from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a "Third-Party Claim") relating to any actual or alleged breach by you of any of your representations, warranties, covenants, or other obligations hereunder.

12.2        Indemnification Procedure.  The Indemnified Party shall promptly notify you on becoming aware of a Third-Party Claim under this Section 12.  You shall promptly assume control of the defense and investigation of the Third-Party Claim, with counsel reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate with you in connection therewith, in each case, at your sole cost and expense.  The Indemnified Party may participate in the defense of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense.  You will not settle any Third-Party Claim on any terms or in any manner that adversely affects the rights of any Indemnified Party without the Indemnified Party's prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed).  If you fail or refuse to assume control of the defense of such Third-Party Claim, the Indemnified Party will have the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to you, in each case, in such manner and on such terms as the Indemnified Party may deem appropriate.  Neither the Indemnified Party's failure to perform any obligation under this Section nor any Indemnified Party's act or omission in the defense or settlement of any such Third-Party Claim will relieve you of your obligations under this Section, except to the extent that you can demonstrate that you have been materially prejudiced as a result thereof.

13.        Term and Termination.

13.1        Term.  The term of this Agreement commences as of the Effective Date and, unless terminated earlier as provided herein, will remain in force for a period of one (1) year (the "Term").

13.2        Termination for Cause.  Either party may terminate this Agreement on written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof.  Licensor may immediately suspend access to and use of the Services and any Training Materials in the event of a failure to pay fees due hereunder provided that Licensor may terminate this Agreement and suspend access immediately, without opportunity to cure, in the event of any unauthorized sharing, copying, or distribution of the Training Materials or other misuse of Licensor IP in violation of Sections 4.2 or 5..

13.3        Effect of Termination.  On the expiration or termination of this Agreement for any reason, all rights licensed under this Agreement will revert immediately to Licensor and you shall cause to be erased all digital copies of the Training Materials and all Confidential Information in your control and possession and return or, at Licensor's written request, destroy, any tangible copies of the Training Materials and all Confidential Information.  Upon Licensor's request, you shall provide an affidavit to Licensor attesting to such erasure or destruction.

13.4        Training Cancellation & No-Shows.  Licensor may cancel any training course at any time by notifying you at least five (5) days prior to the scheduled course.  In such event, Licensor will, at your election, wither refund fees paid for the cancelled course or issue a.  credit of equal value toward a future scheduled course.  If you fail to attend a Training session for which you are scheduled, we may (but are not obligated to) allow you to reschedule that session; however, in such event, you will have to pay (and you agree to pay) a rescheduling fee to be able to reschedule the session. 

13.5        Surviving Rights.  Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in this Section 13.5, and Sections 4.2 – 4.5, Section 5, 7, 8, 10, 11, 12, 13.3, 13.5, 14 and 15.

14.        Remedies. 

14.1        Equitable Relief.  You acknowledge that a breach by you of this Agreement may cause Licensor irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Licensor will be entitled to seek equitable relief, including a restraining order, orders for a preliminary or permanent injunction, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Licensor may be entitled at law or in equity.  Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

14.2        Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (I) LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) LICENSOR’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) THE AMOUNT PAID BY YOU TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, AND (B) ONE HUNDRED DOLLARS ($100).  THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITY DUE TO LICENSOR’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

15.        General.

15.1        Interpretation.  For purposes of this Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole.  This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

15.2        Entire Agreement.  This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter. 

15.3        Severability.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

15.4        Assignment.  You shall not assign any of your rights or delegate any of your obligations under this Agreement without the prior written consent of Licensor.  Any purported assignment or delegation in violation of this Section is null and void.  Licensor may freely assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement.  This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

15.5        Choice of Law; Venue.  This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Virginia, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia.  Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts of Richmond, Virginia, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action, or proceeding (each, an “Exclusive Jurisdiction Court”).  Notwithstanding the foregoing, either Party may bring an action in any court of competent jurisdiction to enforce a judgment obtained against the other Party in an Exclusive Jurisdiction Court.  The Parties agree that the Uniform Computer Information Transactions Act (or any version thereof) adopted by any state in any form shall not apply to these Terms to the fullest extent permitted by applicable law.

15.6        Relationship of the Parties.  Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever. 

15.7        No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

15.8        Amendment and Modification.  No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.

15.9        Waiver.  No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving party.  No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof.  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.

15.10       Attorneys' Fees.  In the event that any claim, suit, action, or proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.

15.11      Force Majeure.  Neither Party will be liable for any failure or delay in performance under this Agreement (other than payment obligations) to the extent caused by circumstances beyond that Party's reasonable control, including acts of God, natural disaster, war, terrorism, labor dispute, internet or utility failure, or governmental action.  The affected Party will notify the other Party promptly and use commercially reasonable efforts to resume performance."