Effective Date: September 25, 2023
THIS LABSIM LICENSE AGREEMENT (this “Agreement”) is made and entered into as of the latest date set forth on the signature page hereto (the “Effective Date”), by and between THE COMPUTING TECHNOLOGY INDUSTRY ASSOCIATION, INC., a Connecticut not-for-profit corporation, with its principal place of business at 3500 Lacey Rd, STE 100, Downers Grove, IL 60515 (“CompTIA”) and the entity or person agreeing to the Agreement (“Licensee”), each a “Party” and collectively the “Parties.” This Agreement consists of the terms and conditions contained herein, the Order Form, and Exhibit A, the Software Pricing, as each may be updated, amended, revised, or supplemented from time to time. The Parties hereby agree to the following terms and conditions:
(a) License Grant. CompTIA grants to Licensee and its Authorized Users (“Authorized Users” means the student and educator users who Licensee permit to access and use the Software under this Agreement pursuant to a valid Activation (defined below)) a non-exclusive, non-transferable, non-sublicenseable license to use CompTIA’s online assessments, labs, and learning resources (“ Software”). This license includes the third-party materials and related media content set forth in Exhibit A together with any corresponding instructor resources (“Licensed Materials”). Licenses are activated when Licensee or Licensee’s Authorized User activates such license through the LabSim portal (an “Activation”). Each license is for a single user only, and Activations shall not be rotated or shared among multiple users. CompTIA reserves all rights not expressly granted to Licensee in this Agreement.
(b) License Term. Unless otherwise specified on the Order Form:
(c) Use Restrictions. Licensee shall not use the Software or Licensed Materials for any purposes beyond the scope of the license granted in this Agreement. Licensee shall not, directly or indirectly, and shall not permit any third party, to:
(i) modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Software. Should any modifications, alterations, amendments, improvements, translations, enhancements, or derivative works of any kind (collectively, “Derivative Works”) result from your, or an Authorized User’s, use of the Software, you and any Authorized User hereby assign any and all such Derivative Works to CompTIA.
(ii) remove, disable, or otherwise create or implement any workaround to any security features contained in the Software.
(iii) remove, delete, or alter any trademarks, copyright notices or other intellectual property right notices of CompTIA or its partners or licensors, if any, from the Software.
(iv) copy the Software, in whole or in part, except that you may either (i) make one copy of the Software or any part thereof for backup or archival purposes, or (ii) transfer the Software to a single additional hard disk provided you keep the hard disk solely for backup or archival purposes. Any copy of the Software or any part thereof made by you is and remains the property of CompTIA, is subject to the terms and conditions of this Agreement, and must include all copyright and other intellectual property notices contained in the original. If the Software is an update or has been updated, any such transfer must include the most recent update and all prior versions. You may not copy the Documentation for any reason.
(v) assign, sublicense, sell, loan, convey, rent, lease, distribute, publish, transfer, or otherwise make the Software available to any third party for any reason.
(vi) reverse engineer, decode, decompile, disassemble, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part (except as and only to the extent this restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-source components included with the Software).
(vii) use the Software in violation of any federal, state or local law, regulation or rule.
(viii) use the Software for purposes of competitive analysis, the development of a competing Software product or any other purpose that is to CompTIA’s commercial disadvantage.
(a) Pricing. Exhibit A shall set forth the agreed pricing (“Fee”) for all products available to the Licensee. To the extent that the Fee for any products changed and/or a new product is added to the existing Exhibit A, CompTIA shall provide Licensee written notice of the foregoing no later than ten (10) days prior to the effective date of such updated Exhibit A (“Revised Exhibit A”). Any existing Exhibit A shall be automatically superseded and replaced by such Revised Exhibit A as of the effective date listed therein, without any requirement for the Parties to execute an updated Agreement or Exhibit A.
(b) Invoices. CompTIA shall invoice Licensee within 30 days of delivering access to the Software. Licensee shall pay CompTIA the full invoice amount including sales tax if applicable (without deduction, set-off, or counterclaim) within thirty (30) days of receipt of invoice, unless any sums are disputed in good faith within fourteen (14) days of receipt of invoice. To the extent Licensee uses a credit card for any payment over five thousand dollars ($5,000.00), Licensee shall incur a three and a half percent (3.5%) service fee on any such payment.
(c) Default; Collection Costs. Licensee’s failure to pay any amounts due under this Agreement shall constitute a material breach of this Agreement, and, if Licensee fails to cure such breach within fifteen (15) days after receiving notice from CompTIA, CompTIA may deactivate all licenses hereunder, terminate this Agreement, and pursue all legal and equitable remedies to recover the balance due. In any action to collect a balance due under this Agreement, Licensee shall be liable to CompTIA for any associated collection costs, including, without limitation, reasonable attorneys’ fees and costs.
(d) No Deductions or Setoffs. All amounts payable to CompTIA under this Agreement shall be paid by Licensee to CompTIA in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
(a) Term & Termination. The term of this Agreement shall commence on the Effective Date and shall continue in effect from year to year thereafter, unless (a) terminated by CompTIA at any time, with or without cause, upon written notice to Licensee at the mailing or email address provided on the cover page hereof; or (b) terminated by Licensee, with or without cause, by providing ten (10) days’ written notice to CompTIA’s legal department at [email protected], with a copy to Licensee’s designated relationship manager.
(b) Effect of Expiration or Termination. Upon the termination of this Agreement, the license(s) granted hereunder will also terminate. Licensee shall cease using and delete, destroy, or return all copies of the Software and Licensed Materials and certify in writing to CompTIA that the Software and Licensed Materials have been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
(c) Survival. All provisions of this Agreement, which by their nature contemplate survival beyond termination of this Agreement shall survive such termination, including without limitation accrued rights to payment, confidentiality, warranties, disclaimers, and limitations and exclusions of liability.
(a) CompTIA Indemnification.
(i) CompTIA agrees to indemnify, defend, and hold harmless Licensee and its officers, directors, agents, affiliates, and employees from and against all losses incurred by Licensee resulting from any third-party claim, suit, action or proceeding (a “Third Party Claim”) that the Software or Licensed Materials, or any use of the Software or Licensed Materials in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Licensee promptly notifies CompTIA in writing of the claim, cooperates with CompTIA, and allows CompTIA sole authority to control the defense and settlement of such claim.
(ii) If such a Third-Party Claim is made or appears possible, Licensee agrees to permit CompTIA, at CompTIA’s sole discretion, to: (A) modify or replace the Software or Licensed Materials, or component or part thereof, to make it non-infringing; or (B) obtain the right for Licensee to continue use. If CompTIA determines that none of these alternatives is reasonably available, CompTIA may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
(iii) This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by CompTIA or authorized by CompTIA in writing; or (B) modifications to the Software not made by CompTIA.
(a) Entire Agreement. This Agreement, including any document incorporated herein by reference, contains the entire understanding between the Parties regarding the subject matter hereof, supersedes all prior or contemporaneous understandings and agreements regarding the subject matter hereof. Any use of Licensee’s pre-printed forms, such as purchase orders, are for convenience only, and any terms and conditions therein that are in addition to, inconsistent with, or different than the terms of this Agreement (including the Exhibits hereto) shall be given no force or effect.
(b) Notices. All notices concerning this Agreement shall be given in writing, as follows: (i) by actual delivery of the notice into the hands of the Party entitled to receive it; (ii) by mailing such notice by registered or certified mail, return receipt requested; (iii) by email so long as receipt is confirmed by recipient; or (iv) by Federal Express, UPS, DHL or any other overnight carrier. All notices that concern this engagement shall be addressed as set forth on the first page of this Agreement. Electronic notices to CompTIA shall be sent to [email protected].
(c) Force Majeure. In no event shall CompTIA be liable to Licensee for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond CompTIA’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (a “Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, CompTIA shall give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
(d) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
(e)Amendment and Modification; Waiver. From time to time, CompTIA may update or modify this Agreement, provided that: (a) the change and modification applies to all customers generally, and are not targeted to any particular customer or partner; (b) no such change will override or supersede Paragraph 10 (Limitation of Liability); (c) no such change or modification will materially reduce the security protections or overall functionality of the Software; and (d) any such change or modification will apply only prospectively, and will not apply to any breach or dispute that arose between the parties prior to the effective date of the change or modification. Unless otherwise noted by CompTIA, such amendment becomes effective ten (10) days after CompTIA provides notice to you of such amendment. CompTIA may provide such notice by posting an amended Agreement on https://comptia.org/labsimterms/ and the links referenced therein. Changes required by any applicable laws will be effective immediately. Licensee’s continued use of the Software after the amendment takes effect may be relied upon by CompTIA as Licensee’s consent to the amendment. Except as stated in this Section 15(g), no modification of, amendment to, or waiver of any rights under the Agreement will be effective unless in writing and signed by an authorized signatory of each CompTIA and Licensee.
(f) Severability. If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable in any jurisdiction, then such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Governing Law; Submission to Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of Illinois, without reference to any conflicts of laws principles that would cause the application of the laws of any other jurisdiction.
(h) No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(i) Assignment. Licensee may not assign this Agreement without Company’s prior written consent.
(j) Export Regulation. The Software and Licensed Materials may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(k) Counterparts; Electronic Execution and Delivery. The Parties may execute and/or transmit the Agreement (including the Exhibits) by electronic means, in one or more counterparts, which together shall be deemed to be one and the same original instrument.