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SOFTWARE as a SERVICE (SaaS) AGREEMENT

The purpose of this Agreement (hereafter referred to as the "Agreement") is to set forth to define an arrangement under which Mastery will provide Software as a Service ("SaaS") for the benefit of the Customer.

The standard SaaS Agreement with Mastery is provided below. By using our SaaS you are explicitly agreeing to all of the following terms and conditions:

DEFINITIONS.

"Courseware" shall mean programmed instructional presentations, including any quizzes, remedial feedback and downloadable documents, designed to deliver learning experiences to the user provided by Mastery to Customer under this Agreement.

"Software" shall mean the Software or Program(s) provided by Mastery to Customer under this Agreement.

"Hosting Services" shall mean the services provided by Mastery to Customer under this Agreement. A complete list of services provided may be found under the Specifications.

"Support Services" shall mean customer service and technical support provided to SaaS users as detailed under the Specifications.

"SaaS" shall mean the combination of internet-based (cloud) Courseware, Software, Hosting Services, and Support Services provided by Mastery to Customer as described by the Specifications.

"Source Code" shall mean the readable forms together with make and build files.

"Delivery" shall mean the SaaS transmitted by Mastery to Customer electronically and in accordance with security measures agreed upon by both parties as described in the this Agreement.

"Mastery Materials" shall mean any software, courseware, code, audio files, video files, data, graphics or other materials or resources transmitted to Customer in order to provide any of the services under this Agreement.

"Customer Courseware" shall mean any courseware, audio files, video files, data, graphics or other materials or resources installed to the MasteryNet™ LMS for transmission to Customer in order to provide any of the services under this Agreement.

Subject to the following terms and conditions of this Agreement, Mastery will provide SaaS for Customer:

1. SAAS SPECIFICATIONS.

Mastery agrees to provide Customer with SaaS according to the following Specifications (the "Specifications"):

Mastery provides SaaS in the form of cloud-based Courseware, Software, Hosting Services, and Support Services.

Courseware

Individuals can purchase courseware licenses as single-play retail views to be started within 6 months, completed within 7 days, and reviewed for 7 days post-completion.

Employers can purchase courseware licenses under a:

  • Volume license for courseware views to be paid in advance and used within two years.

Mastery additionally provides for employers to purchase a volume license for courseware views using SCORM-compliant packaging which enable courses to be installed and hosted on Customer's LMS server.

Software

Customer can license use of the MasteryNet™ LMS under a monthly license subscription.

MasteryNet™ LMS Software enables employers to use Mastery's Hosting Services, assign Courseware, communicate assignments, define learner groups, create reports, customize a Customer-branded training site, post user notifications, import courseware, manage assignments, and track non-hosted training.

Hosting Services

Hosting Services include your use of the MasteryNet™ LMS Software on Mastery's cloud infrastructure to manage and deliver Mastery-Licensed Courseware and Customer Courseware. Hosting Services for a MasteryNet™ LMS Installation includes delivery of the Mastery-Licensed Courseware and Customer Courseware, a lifetime learning record of user completions (as long as Customer maintains the account), and on-demand certificates of completion.

Hosting Services for a MasteryNet™ LMS installation includes delivery of the Courseware and Customer Courseware, a lifetime learning record of user completions (as long as Customer maintains the account), and on-demand certificates of completion.

Support Services

Mastery agrees to provide technical assistance to Customer in connection with the SaaS. Customer agrees to provide first response assistance to organizational users and individuals agree to using the help information provided on the website prior to using Mastery's Support Services.

Mastery's Support Services include:

  • Mastery will use its best efforts to correct all computer program errors or cause the Course owner or publisher to use its best efforts to correct all computer program errors related to the SaaS during the term of this Agreement.
  • Mastery will provide Customer's Information Technology ("IT") staff and training administration staff with unlimited telephone assistance related to the SaaS during normal business work days during the hours of 8:30 am through 5:15 pm Eastern Time Zone.
  • Mastery agrees to help in using SaaS based on the customer's needs via e-mail, phone, and Mastery's web sites. Mastery agrees to maintain the self-help section on the website to include customer support pages with descriptions of product issues and resolutions and frequently asked questions.

1.1 SERVICES PROVISIONS.

Rights and License Granted.

Customer is granted only the rights and services related to the SaaS described on this website. Except for Customer employee course completion records, Customer is not granted any rights or license to the Software or Services under this agreement. Customer acknowledges that through its payments to Mastery it is granted access to the SaaS. Customer further acknowledges that at no time shall it be entitled to download, distribute, install or otherwise redistribute the Software or Courseware in any form not explicitly covered by this Agreement. The Customer understands that access to the SaaS ends when one of the following events takes place: 1) Customer payments are unpaid after sixty days (60 days) of the invoice date, or 2) Customer cancels its subscription with an advanced 30-day written notice and Customer's account is paid in full.

Mastery reserves the right to remove any content Mastery views as harmful or content that could subject a customer to a penalty.

Limitations to Rights and License.

At no time will Customer hold title to or ownership of any of the SaaS, Mastery Data or Source Code or any Materials provided to Customer during the term of this Agreement. Customer access to employee course completion records will be withheld at the end of Term until Customer's balance is fully paid.

U.S. export control laws and other applicable export and import laws govern Customer's use of the SaaS, including technical data. Neither the Mastery Materials nor any direct product thereof may be exported, directly or indirectly, in violation of these laws, or may be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.

1.2 LENGTH OF SERVICE.

Customer agrees to an initial term of service ("Term"). The length of contract term required is based on the type of service desired by Customer and shall be determined solely by Mastery as defined in the payment option selected by Customer.

1.3 SERVICE START DATE.

The first subscription payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon Mastery receipt of payment for such first Term of service or upon a mutually agreed upon alternate date.

1.4 RENEWAL BY CUSTOMER.

In the case of subscription licenses this Agreement will automatically renew unless canceled in writing by Customer at least thirty (30) days prior to the end of Term renewal date. Renewal prices are subject to change. Renewal of Services by Customer indicates agreement to any contract revisions and price changes. Renewal fees for the following Term will be automatically invoiced to Customer's account.

1.5 SAAS CUSTOMIZATION.

Customer acknowledges that the SaaS is provided "as is" and "as delivered" and cannot be construed as being able to be customized or modified in any way. Customer assumes all responsibility to review all features included in the SaaS prior to signing this agreement.

1.6 SAAS SUPPORT.

All support for the SaaS shall be conducted as defined in the Specifications.

2. END-USER PRICING AND SERVICES FEES.

End-User Pricing and Services Fees are subject to change at the sole discretion of Mastery.

3. TERMS OF PAYMENT.

Terms of payment are C.O.D. unless credit approval has been granted by Mastery. If credit approval has been granted, credit terms are net thirty (30) days upon receipt of invoice. Mastery reserves the right to revoke any credit extended and suspend all SaaS if customer's payment is in arrears for more than sixty (60) days.

4. PROPRIETARY INFORMATION.

Proprietary information exchanged hereunder shall be treated as such by Customer. This information shall include, but is not limited to, the provisions of this Agreement, product and services information, materials, software, code, pricing, or any other materials transmitted to Customer under this Agreement. Customer agrees not to (a) decompose, disassemble, decode, or otherwise reverse engineer any Mastery program, code, or technology installed or delivered to Customer or any portion thereof; (b) transmit or allow to be transmitted any such materials to any third party except as necessary for the fulfillment of this Agreement; (c) use any Mastery Materials or SaaS in any way not intended or expressly provided for by this Agreement.

5. CUSTOMER INFORMATION.

Mastery takes ordinary and customary security measures in protecting customer information passing through software, web sites, e-mail, and the portions of non-public network within Mastery's control. Mastery accepts no responsibility beyond ordinary and customary responsibilities.

6. WARRANTIES.

Mastery and any suppliers of content materials make no warranties or representations of any kind, whether expressed or implied, for the SaaS Mastery is providing. Mastery and any suppliers of content materials also disclaim any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Customer, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or due to errors or omissions of Customer. Use of any information obtained by way of Mastery is at Customer's own risk, and Mastery specifically denies any responsibility for the accuracy or quality of information obtained through its Services.

Connection speed represents the speed of an end-to-end connection. Mastery does not represent guarantees of speed or availability of end-to-end connections. Mastery expressly limits its damages to Customer for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Mastery specifically denies any responsibilities for any damages, direct or indirect, arising as a consequence of such unavailability.

6.1 NO DUTY TO CUSTOMER'S USERS NOT DIRECTLY CONTRACTED WITH MASTERY.

Mastery shall have no obligation to support, train or troubleshoot issues for any third-party user due to problems arising out of the use of the SaaS provided to Customer by Mastery. Third parties shall include, but are not limited to: vendors, contractors, Customer's customers, Customer's clients or any third party not directly contracted with Mastery for SaaS and SaaS Support.

7. COPYRIGHTS AND TRADEMARKS.

Customer warrants that Customer has the right to use any applicable trademarks or copyrighted Customer Courseware or materials that Customer installs, integrates or uses in connection with this SaaS.

8. TRANSFER OF AGREEMENT.

Customer may not assign or transfer this Agreement, in whole or in part, without the prior written consent of Mastery. In the event that Customer contemplates whole or partial sale of Customer's business, ownership change, or change in jurisdiction, Customer shall notify Mastery by mail, facsimile, or email no less than sixty (60) days prior to the effective date of the event.

9. TERMINATION.

Mastery may terminate this Agreement at its sole discretion upon the occurrence of one or more of the following events: 1) Customer's failure to comply with any provisions of the Agreement upon receipt of written notice from Mastery of said failure, 2) appointment of receiver or the filing of any application by Customer seeking relief from creditors, or 3) upon mutual agreement in writing by Mastery and Customer.

10. DISPUTES.

If legal proceedings are commenced to resolve a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with any appeals.

11. INDEMNIFICATION.

Customer shall indemnify and hold Mastery harmless from and against any and all claims, judgments, awards, costs, expenses, damages, and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted, or imposed against Mastery directly or indirectly arising from or in connection with Customer's marketing or Support Services of the product or Services or the unauthorized representation of the product and Services or any breach of this Agreement by Customer.

12. GENERAL.

If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement and any disputes arising hereunder shall be governed by the laws of State of Michigan. A failure by any party to exercise or any delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.

The parties represent and warrant that, on start of service Term, they are authorized to enter into this Agreement in its entirety and duly bind their respective principals by their use of the SaaS provided by Mastery.