LICENSE and SUPPORT AGREEMENT Transaction facilitated through ADP Marketplace, Customer-Hosted THIS AGREEMENT, ("Agreement") is by and between; Mastery Technologies, Inc., a Michigan Corporation ( Mastery ), doing business as Mastery Training Content Network ( MasteryTCN ) having its principal place of business at 41214 Bridge St., Novi, Michigan 48375 ( Mastery ); and, a Corporation, having its principal place of business at, ("Customer"). The names MasteryTCN and Mastery are used in this Agreement to refer to Mastery Technologies, Inc. PURPOSE OF THIS AGREEMENT; The purpose of this Agreement is to grant Customer a limited use license to use a library of training programs published by Mastery under its MasteryTCN brand and to receive related installation, delivery, and user support services for the purpose of training Customer s employees and contracted workers, and if Customer is a not-for-profit organization, Customer s members and volunteers. CONTEXT OF SERVICE PROVISIONS IN THIS AGREEMENT; MasteryTCN is a co-developer and co-copyright owner of the training programs ( MasteryTCN Platform Courses ) and is the publisher, product technical support provider, and digital rights and licensing administrator of MasteryTCN Platform Courses. Customer and MasteryTCN have separately and independently used the services of the ADP Marketplace to facilitate the billing, collection, and certain administrative services on behalf of the parties. ADP Marketplace is not a party to this agreement. THEREFORE, in recognition of the value of promises made, rights granted, and obligations accepted under this Agreement, the parties agree as follows: DEFINITIONS; Key terms unique to this Agreement and used throughout the Agreement are defined here for reference. Content Delivery System, Any form of system, technology or service that delivers content to endusers over the Internet. Content Delivery Systems include, but are not limited to content servers, content management systems, content distribution networks, content delivery networks, application service providers, and SaaS providers of content delivery services. Installed Library, The MasteryTCN Platform Courses that Customer has selected from Customer s Licensed Library and installed to Customer s Learning Management System for use by Customer s employees. Learner, A Learner is any person accessing a MasteryTCN Platform Course during a Subscription Period. Learning Management System ( LMS ), is a software application for the administration, documentation, tracking, reporting and delivery of training. For purposes of this Agreement, a LMS may be an independent software application or part of a broader software application or service offering. Examples of broader applications and service offerings include talent management, human resource planning, and workforce planning systems and services.
Licensed Audience, The Customer s maximum number of Licensed Learners with access rights to the Licensed Library. License Fee, A license fee calculated by Mastery based on Customer s Licensed Audience as agreed upon by Mastery and Customer at the start of each Subscription Period. Licensed Library, The collection of MasteryTCN Platform Courses, provided by Mastery and selected by Customer from Mastery s file transfer server for installation to Customer s LMS. Subscription Period, Individual twelve month licensing periods within the Term of this Agreement allowing for Licensed Audience levels to be reviewed and adjusted. 1. SCOPE. This Agreement sets forth the rights and obligations of the parties and other agreement provisions with respect to Customer acquiring limited use rights to the Licensed Library. 2. AGREEMENT TERM, SUBSCRIPTION PERIODS AND RENEWAL. This Agreement shall become effective on the date Customer s order was received by MasteryTCN and shall continue until terminated under the terms and conditions set forth in this Agreement ( Agreement Term ). The Agreement Term is comprised of one-year licensing and reporting periods ( Subscription Periods ). This Agreement shall automatically renew for subsequent Subscription Periods unless otherwise terminated by written notice of non-renewal by Customer at least thirty (30) days prior to the expiration of any Subscription Period. 3. GRANT OF LICENSE RIGHTS. MasteryTCN hereby grants and Customer hereby accepts the right under a non-exclusive limited license to take delivery of the Licensed Library, install the MasteryTCN Platform Courses to a Learning Management System owned or licensed by Customer and under Customer s control, and to allow Customer s employees and contract workers access to the MasteryTCN Platform Courses included in the Licensed Library over the term of this Agreement and renewals thereof. These rights are subject to all provisions of this Agreement and are further described and defined by the following rights, obligations, and restrictions: 3.1. Additional Customer Rights. The following additional rights apply to the Licensed Library: 3.1.1. Customer shall select all MasteryTCN Platform Courses included in the Licensed Library from Mastery s catalog of qualified courses. 3.1.2. Customer may substitute or exchange MasteryTCN Platform Course titles included in Customer s Licensed Library at any time during the term of this Agreement. 3.2. Customer Obligations. The following obligations apply to Customer s use of the Licensed Library: 3.2.1. At the completion of each Subscription Period Customer shall report usage of the Licensed Library that exceeded the number of users in Customer s Licensed Audience for each Subscription Period. Customer agrees that MasteryTCN shall use the reported numbers to bill Customer for additional trueup fees for usage in excess of the Licensed Audience size. 3.2.2. In the event Customer chooses to remove any MasteryTCN Platform Course from Customer s Licensed Library, whether as a result of a substitution or exchange, non-renewal or other course discontinuance, Customer shall ensure that all MasteryTCN Platform Course files and file copies other than learner Page 1
completion records, are completely removed from Customer s storage systems, LMS, and Content Delivery Systems, and all back-up copies existing on external storage media, be deleted or destroyed. 3.2.3. Customer shall follow generally accepted business security measures to protect the MasteryTCN Platform Courses from unlicensed or unlawful access, copy and use. 3.3. Customer Restrictions. Customer is prohibited from delivering any MasteryTCN Platform Course from the Licensed Library to any learner within countries or regions that are subject, or become subject to United States of America trade restrictions on the content or function of the MasteryTCN Platform Course. 4. REPORTING AND DETERMINATION OF LICENSE FEES. License Fees under this Agreement shall be determined and fees paid prior to the commencement of each Subscription Period. License Fees shall be based on the size of Customer s Licensed Audience at the rates published by Mastery on the date of each Subscription Period renewal. 4.1. End of Subscription Period Usage Report. Within fifteen days (15 days) after the conclusion of each Subscription Period, Customer shall provide Mastery with a written statement signed or emailed by an authorized Customer representative stating whether Customer experienced Learner usage that exceeds the Licensed Audience for the completed Subscription Period. If Customer experiences such excess usage, Customer shall list each course title having excess usage and report the total usage for each title during the Subscription Period. 4.2. Fee Adjustments for Use in Excess of Licensed Audience. In the event of Customer s audience, Mastery shall invoice Customer, and Customer shall pay an additional License Fee for the excess use. 4.3. Report Verification. Within twelve months after the end of any Subscription Period, Mastery may request to verify usage for any Subscription Period. Customer shall facilitate Mastery s reasonable access to Customer s systems and records within thirty (30) days of Mastery s request. 5. SUPPORT SERVICES. Mastery agrees to provide technical assistance to Customer in connection with Customer s use of Licensed Library. Customer agrees to provide first response assistance to its users prior to using Mastery s staffed support services. 5.1. Staffed Support Services. Staffed technical support will be composed of the following: 5.1.1. Mastery will use its best efforts to correct all computer program errors or cause MasteryTCN to use its best efforts to correct all computer program errors related to the Licensed Library reported to Mastery during the term of this Agreement. 5.1.2. Mastery will provide Customer s Information Technology ( IT ) staff and training administration staff with unlimited telephone assistance related to the Licensed Library during normal business work days during the hours of 8:30 am through 5:15 pm Eastern Daylight Time. 5.1.3. Mastery will maintain the Mastery.com web site to include staffed active assistance resources during normal business work days during the hours of 8:30 am through 5:15 pm Eastern Daylight Time. The staffed customer support features of the site will include web chat, 800 phone support, trouble ticketing, and email contact with Mastery technical support staff. 5.2. Unstaffed Support Services. Self-help technical support will be composed of the following: Page 2
5.2.1. Mastery will maintain the Mastery.com web site to include detailed product information pages available at all times to Customer. 5.2.2. The Mastery.com web site will include customer support pages with concise product process and problem resolution videos, detailed written descriptions of product issues and resolutions, and questions asked frequently by users. 5.3. Customer s Support Responsibilities. Customer agrees to provide first-tier user support to Customer s learners for the purpose of providing advice and assistance on the use of the MasteryTCN Platform Courses. 6. MAINTENANCE OF ACCOUNTS. Mastery or Mastery s billing and collection service provider will invoice Customer for the amounts specified in Section 4, REPORTING AND DETERMINATION OF LICENSE FEES. Customer shall pay all amounts due under this Agreement no later than the due date of each obligation. All amounts billed and remitted will be denominated in United States currency. 7. REPRESENTATIONS AND WARRANTIES. MASTERY WARRANTS THAT THE MEDIA ON WHICH THE MASTERY LICENSED LIBRARY IS FURNISHED WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF PURCHASE. OTHER THAN THE LIMITED WARRANTY SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MASTERY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OR OPERATION OF MASTERY LICENSED LIBRARY AND SERVICES TO CUSTOMER OR ANY OTHER PERSON. MASTERY RESERVES THE RIGHT TO CHANGE THE WARRANTY AND SERVICE POLICY SET FORTH ABOVE AT ANY TIME WITHOUT FURTHER NOTICE AND WITHOUT LIABILITY TO CUSTOMER OR ANY OTHER PERSON. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE EXCLUDED. 7.1. Mastery s Authority. Mastery represents and warrants that it has full power and authority to enter into and perform its obligations under this Agreement; that Mastery has the right to market, license and distribute the MasteryTCN Platform Courses. 7.2. Customer s Authority. Customer represents and warrants that it has full power and authority to enter into and perform its obligations under this Agreement. 8. LIMITATION OF LIABILITIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF MASTERY AND THE PRODUCERS AND PUBLISHER OF THE MASTERYTCN PLATFORM COURSES, IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS AND SERVICES DELIVERED UNDER THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY CUSTOMER FOR SUCH PRODUCT(S) AND SERVICES AND MASTERY AND THE PRODUCERS AND PUBLISHER OF THE MASTERYTCN PLATFORM COURSES SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANY END USER FOR LOSS OF PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OR LEGAL EXPENSES IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE MASTERYTCN PRODUCTS AND SERVICES. Page 3
9. PROPRIETARY RIGHTS, COPYRIGHTS AND TRADEMARKS. Title to MasteryTCN Platform Courses, copyrights, trademarks, trade names, and brands, including any manual, media and program contained therein, ( MasteryTCN Properties ) shall remain with MasteryTCN and MasteryTCN s content rights owners and co-owners. Customer acknowledges that these proprietary properties constitute a valuable asset of MasteryTCN and except as expressly provided herein, this Agreement does not give Customer any ownership rights or interest in MasteryTCN s or MasteryTCN s content rights owner s and co-owner s trade names, trademarks or copyrights. Customer agrees to preserve and protect all such properties in accordance with the terms of this Agreement. 9.1. Customer Obligations. Customer shall use all reasonable means available to prevent unauthorized publication, display or use of MasteryTCN Properties. Customer shall not remove, alter, cover or obfuscate any web page, program code, copyright notices or other proprietary rights notices placed or embedded by MasteryTCN on or in any part of the MasteryTCN Platform Courses. 9.2. Equitable Relief. Because of the unique and proprietary nature of the MasteryTCN Properties, it is understood and agreed that MasteryTCN s remedies at law for a breach by Customer of its obligations under this Section will be inadequate and that MasteryTCN shall, in the event of any such breach, be entitled to equitable relief (including without limitation provisional and permanent injunctive relief and specific performance) in addition to all other remedies provided under this Agreement or available to MasteryTCN at law. 10. BREACH. A party to this Agreement is considered to be in breach of this Agreement, and the non-breaching party may terminate this Agreement if the breach is not cured by the breaching party within thirty (30) days from written notice from the terminating party. A breach of this Agreement can only occur as a result of one or more of the following events: 10.1. Breach of Obligation. Any failure to perform any action to meet a promise, obligation, pledge or covenant contained in this Agreement, or any material error or omission made with regard to any representation within this Agreement is a breach and is cause for the immediate early termination of this Agreement. 10.2. Breach Due To Non Payment. In the event Customer breaches this Agreement by failing to remit monies due Mastery under this Agreement by the applicable due date and hence, Mastery does not receive such sums within thirty (30) days of the applicable due date, MasteryTCN shall have the right to immediately terminate this Agreement. 10.3. Breach Due To Bankruptcy of Customer. The appointment of a receiver, assignment for the benefit of creditors, application or adjudication in bankruptcy of Customer, or the dissolution of Customer shall immediately terminate this Agreement without imposing a requirement on MasteryTCN to provide notice to Customer. Customer agrees to inform MasteryTCN immediately of Customer s knowledge of, or Customer s intent to take action to cause the appointment of a receiver, assignment for the benefit of creditors, application or adjudication in bankruptcy of Customer, or the dissolution of Customer. 11. EXPIRATION OR NON RENEWAL. This Agreement expires absent any renewal or extension, on the day specified in Section 2, AGREEMENT TERM, SUBSCRIPTION PERIODS AND RENEWAL. Upon non-renewal of this Agreement, the following provisions will apply: 11.1. Customer Rights and Obligations. Upon the expiration and non-renewal of this Agreement the following provisions related to Customer s rights and obligations shall apply: 11.1.1. Termination of Customer Rights. All rights of Customer hereunder other than the limited rights described in this section shall terminate immediately and revert to MasteryTCN, and Customer shall have no rights whatsoever to use Licensed Library and MasteryTCN Platform Courses for any purpose. Page 4
11.1.2. Obligations Regarding Proprietary Property. Customer shall immediately delete all copies of the Licensed Library and all MasteryTCN Platform Courses from Customer s hosting systems, destroy all copies of all MasteryTCN Platform Courses and other MasteryTCN proprietary property, and provide MasteryTCN with a written statement signed by an authorized representative of Customer attesting to the removal and destruction of all copies of all MasteryTCN Platform Courses and other MasteryTCN proprietary property covered by this Agreement. 11.2. Termination of Mastery Obligations. Upon the expiration and non-renewal of this Agreement, all obligations of Mastery set forth in this Agreement shall terminate. 12. TERMINATION DUE TO BREACH. 12.1. Customer Obligations. Upon the termination of this Agreement due to a breach by Customer, all rights of Customer hereunder shall terminate immediately and revert to MasteryTCN. 12.1.1. Acceleration of Payments. Upon termination of this Agreement, all unpaid amounts due, plus all amounts not yet due for the current Subscription Period, plus the calculated amount expected by Mastery to be due from Customer for any License Fees under this Agreement, shall become immediately due and payable. 12.1.2. Obligations Regarding Proprietary Property. Upon termination of this Agreement due to a breach by Customer, Customer shall immediately delete all copies of the Licensed Library and all MasteryTCN Platform Courses from Customer s hosting systems, destroy all copies of all MasteryTCN Platform Courses and other MasteryTCN proprietary property, and provide MasteryTCN with a written statement signed by an authorized company/organization representative attesting to the removal and destruction of all copies of all MasteryTCN Platform Courses and other MasteryTCN proprietary property covered by this Agreement. 12.2. MasteryTCN Obligations. Upon the termination of this Agreement due to a breach by Customer, all obligations of MasteryTCN set forth in this Agreement shall cease immediately. 13. ASSIGNMENT AND TRANSFER. In the event of a whole or partial sale of Customer s business, ownership change, or change in jurisdiction, Customer shall notify Mastery in writing within sixty (60) days of the effective date of the event. If the number of Customer s licensed seats is expected to increase as a result of assignment or transfer, the License Fee shall be adjusted accordingly by Mastery and Mastery shall then approve such assignment, or communicate any objection in writing within fifteen (15) days of receiving Customer s notification. Mastery s approval shall not be unreasonably withheld and the parties agree to negotiate in good faith, should Mastery raise any objection to the assignment. Page 5
14. NOTIFICATION. All notices, reports, requests, approvals and other communications required or permitted under this Agreement must be in writing. The parties agree that electronic mail shall suffice as written communication. They will be considered as given (a) when delivered personally, (b) when sent by confirmed facsimile, or (c) twenty-four (24) hours after having been sent by commercial overnight courier with written verification of receipt. All such notices will be addressed as follows. If to Mastery Technologies: If to Customer: Mastery Technologies, Inc. 41214 Bridge Street, Novi, MI 48375 orders@masterytech.com 15. SURVIVAL OF PROVISIONS. The provisions of the following Sections shall survive the expiration or earlier termination of this Agreement: Section 6, MAINTENANCE OF ACCOUNTS Section 7, LIMITATION OF LIABILITIES Section 8, PROPRIETARY RIGHTS, COPYRIGHTS AND TRADEMARKS 16. SEVERABILITY. In the event any provision of this agreement shall be deemed invalid, unreasonable or unenforceable by any court of competent jurisdiction, such provision shall be stricken from the Agreement or modified so as to render it reasonable, and the remaining provisions of this agreement or the modified provision as provided above, shall continue in full force and effect and be binding upon the parties so long as such remaining or modified provisions reflect the intent of the parties at the date of this agreement. 17. ARBITRATION AND MEDIATION. If any dispute arises under the terms of this agreement, the parties agree to select a mutually agreeable neutral third party to help them mediate the matter. If the mediation is unsuccessful, the parties agree that the dispute shall be decided by binding arbitration under the rules issued by the American Arbitration Association. The decision of the arbitrator shall be final. Costs and fees (other than attorney s fees) associated with the mediation and arbitration service shall be shared equally by the parties. Each party shall be responsible for its own attorneys' fees associated with the mediation or arbitration. 18. GOVERNING LAW. This Agreement and the rights and obligations of the parties hereto shall be construed and governed according to the laws of the State of Michigan. Page 6
19. ENTIRE AGREEMENT AND WAIVER. This Agreement and its Exhibits referenced herein constitutes the entire Agreement between the parties hereto and supersedes all prior agreements, written or otherwise. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives on the day and year first above written. Customer By: Signature: Title: Date: MASTERY TECHNOLOGIES, INC. By: William Marker Signature: Title: President Date: Page 7