This License Agreement is made between OnVision Solutions, Inc., a Colorado corporation (“OnVision”), and the entity or person who is purchasing a license to the web-based software solution known as The Studio Director (the “Licensed Product”). The entity or person making the purchase is referred to in this Agreement as “Licensee.”
1. License Grant. Subject to all of the terms of this Agreement, OnVision grants to the Licensee, and the Licensee accepts, a limited, personal, non-exclusive, non-transferable license to use the Licensed Product for scheduling of instructional classes and managing class enrollment. If Licensee operates more than one facility or offers instructional classes at more than one location and requires a separate set of books for the different locations, Licensee is required to purchase a separate license for each location.
2. License Fees. A. Initial License Fee. Licensee will pay the one time charge as an initial license fee upon acceptance of this Agreement. The amount of the initial license fee is as described in the documentation relating to the purchase of the Licensed Product.
B. Monthly Support Fees. Licensee will pay the monthly support fees for all periods when Licensee is using the Licensed Product. The amount of the monthly support is as described in the documentation relating to the purchase of the Licensed Product. The monthly support fee shown on the current documentation will be billed automatically to Licensee’s credit card upon Licensee’s purchase of the Licensed Product and each month the Licensee uses the Licensed Product. The amount of monthly support fee is based on the number of students stored in the Licensed Product (active and inactive) and therefore, the fee for each monthly billing is assessed from the then current rate for the then current number of students. Licensee must maintain a valid credit card on-file with OnVision during the term of this agreement. OnVision reserves the right to modify its fees upon 30 day prior written notice which may be provided by e-mail.
C. Non-Payment. OnVision may terminate this agreement and Licensee’s access to the Licensed Product for Licensee’s non-payment of fees. OnVision has no obligation to retain any of Licensee’s data which may be irretrievably deleted if Licensee’s account is delinquent by more than 30 days. Licensee agrees that OnVision may charge unpaid fees to Licensee’s credit card or otherwise bill Licensee for unpaid fees.
3. License Restrictions.
A. Licensee will not copy any portion of the Licensed Product or allow its use by anyone other than Licensee and its employees, except that Licensee’s customers may access information about classes that is provided by the Licensed Product. Licensee may not use the Licensed Product for the benefit of any third party, including, but not limited to, commercial timesharing or service bureau or other rental or sharing arrangements.
B. Licensee will not reverse engineer or attempt to derive the source code, underlying ideas, algorithms or file formats of the Licensed Product. Licensee will not distribute, sell or otherwise transfer any rights in the Licensed Product.
4. Limited Warranty; Limitation of Liability and Remedies.
A. Limited Warranty. The Licensed Product is provided “as is,” and to the maximum extent permitted by applicable law, OnVision disclaims all warranties, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purposes and non-infringement. Furthermore, OnVision does not warrant, guarantee, or make any representations regarding the use of the Licensed Product in terms of correctness, reliability or otherwise or the performance of the Licensed Product. This limited warranty gives Licensee specific legal rights and Licensee may have others, which vary from jurisdiction to jurisdiction.
B. Limitation on Liability; Remedies. Both parties’ liability arising under this Agreement shall be limited to direct, objectively measurable damages and neither party shall be liable to the other party for any incidental, consequential, special, or punitive damages of any kind or nature, including, without limitation, the breach of this Agreement or any termination of this Agreement, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability), or otherwise, even if either party has warned or been warned of the possibility of such loss or damage. The aggregate liability of OnVision under this Agreement shall not exceed the total amounts paid by Licensee during the twelve (12) month period preceding the event that gave rise to the claim.
5. Proprietary Rights. The Licensed Product has substantial monetary value and is proprietary to OnVision. The Licensed Product includes copyrighted works and trade secrets, and may include inventions for which a patent has been applied for or issued. OnVision retains ownership of all rights, title and interest to the Licensed Product and all enhancements, derivative works and modifications of the Licensed Product. Licensee will notify OnVision immediately if Licensee becomes aware of any unauthorized possession or use of the Licensed Product.
6. Termination. The license granted by this Agreement will terminate if Licensee fails to pay the monthly support fees or commits a material breach of this Agreement. Upon termination, OnVision will disable the Licensed Product and it will no longer be available for Licensee’s use. In the event that OnVision discontinues sales of the Licensed Product, it may terminate Licensee’s license on 30 days written notice.
8. Hardware and Software Requirements. Licensee must have computer hardware and software to support Licensee’s access to the internet, including browser software and an internet connection. Licensee must have a valid license to Microsoft Word in order to make full use of the Licensed Product.
9. Miscellaneous Provisions.
A. Governing Law; Venue. The validity, construction, and performance of this Agreement will be governed by the internal laws of the state of Colorado and all claims and/or lawsuits in connection with this Agreement shall be brought in El Paso County, Colorado. Licensee consents to the personal jurisdiction over Licensee by the Colorado state courts in El Paso County.
B. Entire Agreement. This Agreement, including the linked documentation referenced herein, contains the entire understanding and agreement of Licensee and OnVision with respect to licensing the Licensed Product, supersedes all prior oral or written understandings and agreements relating thereto, and may not be altered, modified or waived in whole or in part, except in writing, signed by duly authorized representatives of Licensee and OnVision.
C. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to any law, the remaining provisions will remain in full force and effect as if the objectionable provision never existed.
D. Assignment. Licensee may not assign its rights under this Agreement without the written consent of OnVision.
E. Waiver. No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
F. Force Majeure. OnVision will not be in default by reason of any failure of its performance under this Agreement if such failure results, directly or indirectly, from, fire, explosion, strike, freight embargo, weather, act of God, war, civil disturbance, act of government or any agency or official thereof, labor shortage, severe weather, failure of vendors, manufacturers, suppliers or subcontractors or any other event beyond the control of OnVision.
G. Authority. If Licensee is an entity, then the individual accepting these terms has the authority to enter into a binding agreement on behalf of the entity.