Pro Bono Project Agreement Terms of Service for Website Design & Software Licensing Between Elegant E-Learning, Inc. and ( Client -or- Licensee ) Please read carefully the following legally binding Licence Agreement between Elegant E-Learning, Inc. and Licensee (as defined below) for the Licensed Tool defined below. The Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms of this Licence Agreement. 1. DEFINITIONS 'Documentation' means any documentation made available to Licensee by Elegant E-Learning, Inc. (whether electronic or printed) which accompanies the Licensed Tool. 'Licence Agreement' means this agreement. 'Licence Term' means the period from the Start Date until termination or expiry of the Licence Agreement in accordance with Clause 6. 'Licensed Tool means the branded website created, hosted and maintained for the licensee by Elegant E-Learning, Inc. free of charge, and, free of advertising and other solicitations, after acceptance of these licence terms (including without limitation the Software and Documentation). 'Software' means any program or data file supplied to Licensee by Elegant E-Learning, Inc. including any Upgrades or Updates supplied to Licensee. The term Software does not include any Third Party Software. 'Elegant E-Learning, Inc.' means Elegant E-Learning, Inc. (a company registered in Canada at 1466 Limeridge Road East, Hamilton, ON L8W3J9) as licensor and/or its subsidiaries, or, as the context so applies, any of them. 'Start Date' means the date the Licensed Tool is provided to Licensee. Third Party Licensors has the definition set out in Clause 11. Third Party Software has the definition set out in Clause 11. 'Update' means an update to the website content or software made available to Licensee by Elegant E-Learning, Inc.; and/or other updates to the software, including but not limited to an update to the IP address made available to Licensee by Elegant E-Learning, Inc.. 'Upgrade' means any enhancement or improvement to the functionality of the Licensed Tool made available to Licensee by Elegant E-Learning, Inc. at its sole discretion from time to time but excluding any
software and/or updates marketed and licensed by Elegant E-Learning, Inc. to its customers generally for a separate Fee. 'Licensee' means the Licensee and 'Licensee s' means belonging to Licensee or engaged by Licensee or otherwise pertaining to Licensee as the context so allows, whether on a temporary basis or otherwise. 2. COPYRIGHT AND OWNERSHIP The Licensed Tool is the exclusive property of Elegant E-Learning, Inc. and its licensors. Further, Licensee hereby acknowledges and agrees that the right, title and interest in any modifications made by Licensee to the Licensed Tool, as provided for below in this Licence Agreement, is retained by Elegant E-Learning, Inc.. The Licensed Tool is a proprietary product of Elegant E-Learning, Inc. and its licensors and is protected throughout the world by copyright and other intellectual property rights. No licence, right or interest in Elegant E-Learning, Inc.'s logos, or trademarks is granted to Licensee under this Licence Agreement and Licensee hereby agree not to remove any product identification or notices of proprietary restrictions. 3. GRANT OF LICENCE For other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Elegant E-Learning, Inc. hereby grants to Licensee a non-exclusive right to use the Licensed Tool for the Licence Term subject to the following provisions. 3.1 Licensee is permitted to: 3.1.1 use the Licensed Tool for Licensee s all lawful business purpose, relating specifically to the purposes described in the Documentation and/or the Elegant E-Learning, Inc. webpage; 3.1.2 transmit or provide access to the Licensed Tool in so long as access is granted free of charge or encumberances; 3.2 Licensee is not permitted to: 3.2.1 use the Licensed Tool for the provision of any service for the benefit of third parties unless Licensee first acquires an application service provider licence from Elegant E-Learning, Inc.; 3.2.2 modify or translate the Licensed Tool; 3.2.3 reverse engineer, disassemble or decompile the Licensed Tool or any portion thereof except to the extent and for the express purposes authorised by applicable law; 3.2.4 sub-license, rent, sell, lease, distribute or otherwise transfer the Licensed Tool save as provided under this Licence Agreement unless Licensee obtain a separate licence from Elegant E-Learning, Inc. for such purposes (for example, Licensee may not embed the Licensed Tool into another application and then
distribute such to third parties unless Licensee first acquires an OEM licence from Elegant E-Learning, Inc.); and/or 3.2.5 use the Licensed Tool in or in association with safety critical applications where the failure of the Licensed Tool to perform can reasonably be expected to result in a significant physical injury, or in loss of property, or loss of life. Any such use is entirely at Licensee s own risk, and Licensee agrees to hold Elegant E-Learning, Inc. harmless from any and all claims or losses relating to such unauthorized use; and/or 3.2.6 use the Licensed Tool for the purposes of competing with Elegant E-Learning, Inc., including without limitation competitive intelligence. 3.3 Licensee is required to: 3.3.1 add a link to the Licensed Tool on the Licensee s website; 3.3.2 promote this partnership and the pro bono use of the Licensed Tool through one of the following: news release, media alert, blog post, social media post, by placing the Driving-Tests.org logo as a banner linking the the Licensed Tool, or, inclusion in any annual reports solely at their discretion; 3.3.3 provide a high resolution version of their logo for use in the creation of the Licensed Tool. 4. DISCLAIMER OF WARRANTIES AND INDEMNITY 4.1 THE LICENSED TOOLS IS PROVIDED FREE OF CHARGE AND ACCORDINGLY IS PROVIDED AS IS. Elegant E-Learning, Inc. MAKES NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE LICENSED TOOL INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTIONS. WITHOUT LIMITATION TO THE FOREGOING, Elegant E-Learning, Inc. DOES NOT WARRANT THAT THE LICENSED TOOL WILL MEET LICENSEE S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED TOOL WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE LICENSED TOOL WILL BE CORRECTED. 4.2 LICENSEE SHALL FULLY AND EFFECTIVELY INDEMNIFY Elegant E-Learning, Inc. FOR ANY CLAIM, ACTION, PROCEEDING, LIABILITY OR EXPENSE SUFFERED BY Elegant E-Learning, Inc. AS A RESULT OF LICENSEE S USE OF THE LICENSED TOOL. 5. LIMITATION OF LIABILITY
5.1 LICENSEE USES THE LICENSED TOOL AT LICENSEE S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Elegant E-Learning, Inc. BE LIABLE TO LICENSEE OR TO THOSE CLAIMING THROUGH LICENSEE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, LOSS OF OR CORRUPTION OF INFORMATION OR DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING NEGLIGENCE, EVEN IF Elegant E-Learning, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 5.2 IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS LICENCE AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND Elegant E-Learning, Inc. BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED CANADIAN DOLLARS (CD100). 5.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL Elegant E-Learning, Inc. S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS LICENCE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED ONE HUNDRED CANADIAN DOLLARS (CD100). 6. TERM This Licence Agreement is effective from the Start Date and shall remain in force indefinitely unless and until (i) Elegant E-Learning, Inc. gives notice that the Licensed Tool has been withdrawn and/or the licence is no longer effective by posting details on its website URL: www.elegantelearning.com, or, www.driving-tests.org; or (ii) the Licence Agreement is terminated in accordance with Clause 10. Licensee s obligations under this Licence Agreement in respect of the intellectual property and confidential information of Elegant E-Learning, Inc. shall survive any expiry or termination of this Licence Agreement. 7. DATA SHARING 7.1 Licensee acknowledges and agrees that Elegant E-Learning, Inc. may directly and remotely communicate with the Licensed Tool for the purposes of, without limitation, (i) verifying credentials; (ii) issuing reports and alert messages; (iii) providing support; (iv) applying policy and configuration changes; and (v) extracting usage information, service performance information, and logs. 7.2 Licensee agrees that Elegant E-Learning, Inc. may use any such data for its business purposes and Licensee represents to Elegant E-Learning, Inc. that Licensee has obtained all necessary permissions to share such data with Elegant E-Learning, Inc. Licensee acknowledges that Elegant E-Learning, Inc. may disclose such data if required to do so by law. 8. U.S. GOVERNMENT RESTRICTED RIGHTS If Licensee is an agency or other part of the U.S. Government, the Software and the Documentation are commercial computer software and commercial computer software documentation and their use,
duplication and disclosure are subject to the terms of this Licence Agreement per FAR 12.212 or DFARS 227.7202-3, as amended. 9. TERMINATION Licensee may terminate this Licence Agreement at any time by notifying Elegant E-Learning, Inc. in writing 30 days prior to termination. This Licence Agreement and Licensee s rights under it will also terminate immediately if: (i) Licensee fails to comply with any of the terms and conditions of this Licence Agreement; or (iii) if Licensee takes or suffers any action on account of debt or becomes insolvent. On termination of this Licence Agreement, Licensee must delete any links to the Licensed Tool from their website. Upon request, Licensee must supply written certification to Elegant E-Learning, Inc. of the deletion by Licensee of links to the Licensed Tool. 10. CONFIDENTIALITY 10.1 The Software may include confidential information that is secret and valuable to Elegant E-Learning, Inc. and its licensors. Licensee is not entitled to use or disclose that confidential information other than strictly in accordance with the terms of this Licence Agreement. Elegant E-Learning, Inc. reserves the right to disclose details of the Licence Agreement to third parties for publicity and promotional purposes and 10.1.1 Licensee expressly gives Elegant E-Learning, Inc. permission to include and publish Licensee s company name and logo on lists of Elegant E-Learning, Inc.'s customers for the Licensed Tool; and 10.1.2 Licensee agrees that Elegant E-Learning, Inc. may send promotional emails (1 per year) to Licensee to provide information about other goods and services in which Licensee may be interested. 10.1.3 If Licensee does not wish to give Elegant E-Learning, Inc. permission under Clause 10.1.1 and/or 10.1.2, Licensee must notify Elegant E-Learning, Inc., specifying which permission is not granted. 10.2 Elegant E-Learning, Inc. will process any personal data in accordance with the terms of this Licence Agreement, personal data may be disclosed within the Elegant E-Learning, Inc. group of companies. 11. THIRD PARTY SOFTWARE The Licensed Tool may operate or interface with software or other technology that is licensed to Elegant E-Learning, Inc. from third parties ( Third Party Licensors ), which is not proprietary to Elegant E-Learning, Inc., but which Elegant E-Learning, Inc. has the necessary rights to license to Licensee ( Third Party Software ). Licensee agrees that (a) it will use such third party software in accordance with this Licence Agreement, (b) no Third Party Licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party software or the Licensed Tool, (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Licence Agreement or Licensee's use of such third party software, (d) such third party software may be licensed under license terms which grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Licence Agreement, and such additional license rights and
restrictions are described or linked to in the applicable Documentation, the relevant Elegant E-Learning, Inc. webpage, or within the Licensed Tool itself. 12. GENERAL 12.1 Licensee agrees that Elegant E-Learning, Inc. may use any technical information provided by Licensee for its business purposes, including without limitation for product support and development. 12.2 Elegant E-Learning, Inc. may amend the terms and conditions of this Licence Agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL www.elegantelearning.com/legal, which amended terms and conditions shall be binding upon Licensee. 12.3 Failure by Elegant E-Learning, Inc. to enforce any particular term of this Licence Agreement shall not be construed as a waiver of any of its rights under it. 12.4 The illegality, invalidity or unenforceability of any part of this Licence Agreement will not affect the legality, validity or enforceability of the remainder. 12.6 This Licence Agreement constitutes the entire agreement between the parties in relation to the Licensed Tool and its licensing and supersedes any other oral or written communications, agreements or representations with respect to the Licensed Tool. 12.7 If there are any inconsistencies between the English language version of this Licence Agreement and any translated version, then the English language version shall prevail. 12.8 A person who is not a party to this Licence Agreement has no right to enforce any term of this Agreement under applicable legislation and the parties to this Licence Agreement do not intend that any third party rights are created by this Licence Agreement. 12.9 In the event that your head office is located in: THE UNITED STATES OF AMERICA, CANADA, LATIN AMERICA this Licence Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and the courts of the Commonwealth of Massachusetts shall have non-exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Licence Agreement; and Any notices required to be given in writing to Elegant E-Learning, Inc. or any questions concerning this End-User Licence Agreement should be addressed to The Legal Department, Elegant E-Learning, Inc., 1466 Limeridge Road East, Hamilton, ON L8W3J9, CANADA. V20May2014