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HELIUS LEARNING MANAGEMENT PORTAL This Software Hosting Agreement (the "Agreement") is entered into between Helius, LLC ("HELIUS"), a Utah corporation, 333 South 520 West, Suite 330, Lindon, Utah 84042, and CUSTOMER, with reference to the facts set forth in the Recitals below and effective as of the date of the initial Sign-up ("Effective Date"). RecitalsA. HELIUS develops and markets computer software products and services for the creation, management, delivery and tracking of online presentations. B. Pursuant to an Evaluation Pilot Program, HELIUS is making the Service available to CUSTOMER for a limited time, on the terms and conditions contained herein. 1. DEFINITIONS 1.1 "CUSTOMER" is the person, company or entity that subscribed to the Helius Learning Management Portal service through completing a sign-up request . CUSTOMER must accept and agree to this Agreement before using the Service. 1.2. "Sign-up" means the transaction, by which CUSTOMER obtained a username and password for a limited time evaluation use of the Service. 1.3. "Customer Data" means all information entered into the Hosting System by CUSTOMER in the course of its authorized use of the Hosting System and stored on the Host Server for access by the Hosting System and retrieval by CUSTOMER. 1.4. "Host Server" means the server provided by HELIUS or its agent through which CUSTOMER accesses the Hosting System, identified by a URL and a single account and password to be established by CUSTOMER. 1.5. "Hosting System" means the Learning Management Portal computer software in object code form owned or provided by HELIUS for which CUSTOMER has License Rights granted pursuant to this Agreement, updates and upgrades to the Hosting System, and online documentation. 1.6. "Intellectual Property Rights" means inventions, patent applications, patents, design rights, utility models, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. 1.7. "Service" means the Hosting System services consisting of non-exclusive electronic access to the Host Server to store Customer Data and make Host Server available on demand by CUSTOMER via the Internet as more specifically identified herein. 1.8 "Prohibited Content or Commerce" means that the CUSTOMER is prohibited from using the Service to store prohibited content or engage in prohibited activities. Specifically HELIUS prohibits the use of the Service by a CUSTOMER that engages in any of the following:
1.9 "Authorized Recipients" means recipients of your email with whom you have a pre-existing business relationship or have received informed consent. CUSTOMER is considered to have a pre-existing business relationship with recipients who have made a purchase, requested information, responded to a survey or form, or had offline contact with you. Informed consent means the recipient has been clearly and fully notified of the collection and use of their e-mail address and has consented prior to its collection and use. 1.10 "Unsolicited Commercial eMail" means sending email messages through the Service to recipients who are not Authorized Recipients and/or sending email messages through the Service where any of the following conditions are true:
2. USE OF Hosting System 2.1 License Subscription Rights Granted
2.2 Intellectual Property Ownership. HELIUS (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the HELIUS technology, the content (excluding Customer Data) and the Service. In the event CUSTOMER provides any suggestions, ideas, enhancement requests, or feedback ("Feedback") to HELIUS with respect to the Service, CUSTOMER agrees that HELIUS may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any HELIUS product or service. This Agreement is not a sale and does not convey any rights of ownership in or related to the Service, the HELIUS technology or the Intellectual Property Rights owned by HELIUS. The HELIUS name, the HELIUS logo, and the product names including HELIUS Learning Management Portal associated with the Service are trademarks of HELIUS or third parties, and no right or license is granted to use them. 2.3. Verification. HELIUS shall have the right to audit Customer's account on the Hosting System at any time. 3. Services 3.1. Hosting Services. HELIUS will provide CUSTOMER with access to the online Hosting System for a limited time and will provide for the storage and retrieval of Customer Data in connection with use of the Hosting System. CUSTOMER is responsible for obtaining access to the Internet using software and hardware that meet HELIUS's minimum requirements, including security requirements. 3.2. Access. CUSTOMER is responsible for the confidentiality and use of their account name and password. HELIUS will deem any communication, data transfer, or use of the Hosting System received under CUSTOMER account name and password to be for CUSTOMER's benefit and use. CUSTOMER agrees to notify HELIUS if the account name or password is lost, stolen, or being used in an unauthorized manner. CUSTOMER represents and warrants that it has the rights to all Customer Data, including the right to upload Customer Data to the Host Server in connection with its authorized use of the Hosting System. CUSTOMER agrees that the Customer Data and its use do not infringe the rights of any third party and agrees to indemnify and hold HELIUS harmless from any third-party claims of infringement under the same terms and conditions as set forth below in Section 5.5. This infringement indemnity states the entire and exclusive obligation of CUSTOMER regarding any claim of infringement or breach of this Section 3.2. For avoidance of doubt, CUSTOMER's liability under this Section is subject to the limitations of liability set forth in Section 5.5. 3.3. Data Retrieval. Data Retrieval. When required, CUSTOMER agrees to access the Hosting System and to store and retrieve data using third party programs, including specifically Internet "browser" programs, that support data security protocols compatible with those specified by HELIUS. 3.4. Ownership of Data and License. Ownership of Data and License. CUSTOMER shall retain ownership of all Customer Data stored or retrieved in connection with use of the Hosting System, which data shall be subject to the confidentiality provisions set forth below. CUSTOMER agrees that back-up or archival of Customer Data is not an infringement of any Intellectual Property Rights of CUSTOMER or any third party. CUSTOMER agrees that it will not store data on the Host Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. 4. TERM AND TERMINATION 4.1. Term. CUSTOMER's rights to use the Hosting System and Services shall remain in effect for thirty (30) days. 4.2. Termination. This Agreement terminates after thirty (30) days. HELIUS may suspend all services immediately if CUSTOMER commits a material breach of this Agreement. 4.3. Effect of Termination. Termination of this Agreement shall not prevent HELIUS from pursuing other remedies available to it, including injunctive relief. See below, 5.7. 5. INDEMNITY, WARRANTIES, REMEDIES 5.1 DISCLAIMER OF WARRANTIES. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT OR INFORMATION. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HELIUS DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE HOST SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT AND INFORMATION IS PROVIDED STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 5.2. INTERNET DELAYS. INTERNET DELAYS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HELIUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 5.3 Representations and Warranties. Representations and Warranties. HELIUS represents and warrants that: (a) Hosting System and Services will perform in conformity with its documentation, manuals, and specifications, (b) to its knowledge, there are no suits or proceedings pending or threatened which allege any infringement of any third party Intellectual Property Rights, and (c) it has the valid right to grant to CUSTOMER all rights to the Hosting System and Service as granted herein. 5.4. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY UNDER SECTION 5.5 (INFRINGEMENT INDEMNITY), IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 5.5. CUSTOMER Indemnity. CUSTOMER shall indemnify and defend HELIUS against all costs, including but not limited to reasonable attorney's fees, and losses arising out of any action by a third party against HELIUS arising directly or indirectly out of or incidental to (i) the breach by CUSTOMER of any of its obligations or covenants hereunder; (ii) the content, disclosure and distribution of any Customer Data; or (iii) an alleged infringement of Customer Data on a third party's intellectual property right(s). 5.6. Exclusive Remedies. For any breach of the warranties contained in Section 5, CUSTOMER's exclusive remedy, and HELIUS's entire liability, shall be:
6. USAGE PROVISIONS 6.1 Usage Limits. CUSTOMER agrees to use Hosting System in accordance with the usage limits specified in the Sign-Up and as specified in this Agreement. CUSTOMER will not engage in any activities that would circumvent the enforcement of the specified usage limits. Usage Limits include the following:
HELIUS reserves the right to impose any other usage limits from time to time that it deems necessary to ensure the performance and stability of Hosting System without notice to CUSTOMER. 7. GENERAL TERMS 7.1. Governing Law and Dispute Resolution. The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the State of Utah, without giving effect to principles regarding conflicts of laws. Any controversy or claim arising out of or relating to the Agreement, or breach thereof, shall be submitted to the following procedure: (a) direct negotiation in a settlement conference to be scheduled as soon as possible after the dispute arises; (b) if no resolution is reached within sixty (60) days of the settlement conference, the parties will submit the dispute to non-binding mediation in Utah County, Utah under the mediation rules of the American Arbitration Association; (c) if no settlement is reached within sixty (60) days of the start of mediation, either party may seek legal redress in the state or federal courts of Utah County, Utah. 7.2. Notice. CUSTOMER agrees to make reasonable efforts to notify HELIUS of any changes to CUSTOMER's mailing address, e-mail address, and telephone number within ten (10) days of any change thereto. All notices required or permitted hereunder shall be given by writing, facsimile, or electronic mail so long as the other party acknowledges receipt of the same within five (5) days by any of the same methods. To expedite order processing, CUSTOMER agrees that HELIUS may treat documents emailed or faxed by CUSTOMER to HELIUS, including documents generated by online transactions, as original documents. 7.3. Publicity. Unless CUSTOMER notifies HELIUS otherwise in writing, CUSTOMER hereby grants to HELIUS a right to use CUSTOMER's trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, and financial reports. Further, unless CUSTOMER notifies HELIUS otherwise in writing, HELIUS retains the right to identify CUSTOMER as a valued customer and optionally issue a press release that, at a minimum, discloses CUSTOMER subscribed to Service and that it is CUSTOMER's preferred online presentation delivery tool. Notifications regarding this section should be mailed to HELIUS Corporation, Attn. Customer Listing , 333 South 520 West, Suite 330, Lindon, Utah 84042. 7.4. Other Terms. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach. All rights and licenses granted to CUSTOMER in this Agreement shall apply to CUSTOMER's subsidiaries provided CUSTOMER remains fully liable for the acts and any omissions of its subsidiaries under this Agreement. This Agreement constitutes the complete Agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. CUSTOMER may not assign this Agreement or any rights or obligations hereunder without the prior written consent of HELIUS, which consent shall not be unreasonably withheld or delayed; any such assignment without prior consent shall be null and void. Notwithstanding the foregoing, CUSTOMER may assign this Agreement to any entity who acquires (by merger, acquisition, or otherwise) all or substantially all of the business assets of CUSTOMER applicable to the subject matter of this Agreement. It is expressly agreed that the terms of this Agreement shall supersede the terms in any Sign-up or other ordering document. 7.5. Changes to Agreement.The terms and conditions set forth in this Agreement, including without limitation all usage provisions, may be revised, modified or supplemented by HELIUS in its discretion at any time or from time to time by providing thirty (30) days advance notice of such change to CUSTOMER in writing (including email), provided however that any pricing change shall not take effect until the expiration of the term for any pre-paid services currently in effect. Upon receipt of notice of any change in the terms and conditions, CUSTOMER shall have the right to terminate the Agreement upon written notice to HELIUS, in the absence of which notice CUSTOMER will be deemed to have accepted the new terms and conditions. |