LabSim License Agreement

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:

1. License.

   (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:

   1. (i) For K-12 educational institutions, all licenses will expire at the end of the current academic year in which they were activated.
   2. (ii) For all other customers, each license is valid for twelve (12) months from the date of the license activation.

   (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:

   1. (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.

   2. (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.

   3. (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.

   4. (v) assign, sublicense, sell, loan, convey, rent, lease, distribute, publish, transfer, or otherwise make the Software available to any third party for any reason.

   5. (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).

   6. (vii) use the Software in violation of any federal, state or local law, regulation or rule.

   7. (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.

2. Fees and Payment.

   1. (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.

   2. (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.

   3. (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.

   4. (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.

3. Intellectual Property Rights. Licensee acknowledges that CompTIA owns all right, title and interest in and to the Software, and, with respect to the Licensed Materials, the applicable third-party licensors own all right, title and interest in and to the Licensed Materials. Notwithstanding anything in this Agreement to the contrary, CompTIA shall have the right to capture, collect, maintain, process and use any and all information associated with the use of the Licensed Materials, including without limitation, product usage information, aggregated user performance, assessments, and statistical analyses. To the fullest extent permitted by law, CompTIA shall have the right to share such information collected with third parties. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any right, title, or interest in or to any of the Software or the Licensed Materials.
4. Confidential Information. Confidential Information. During the Term of this Agreement, each Party recognizes that it may be exposed to materials, data, operations, and other non-public information of the other Party that the other Party considers to be confidential or proprietary (collectively, “Confidential Information”). Each Party retains full ownership, rights, and interest in and to its Confidential Information. The Party receiving Confidential Information under this Agreement agrees that it will: (i) use the same degree of care in protecting the Confidential Information of the other Party against unauthorized disclosure as it accords to its own Confidential Information, but in no event less than a reasonable standard of care; (ii) hold the disclosing Party’s Confidential Information in trust solely for the disclosing Party's benefit and use; (iii) not directly or indirectly sell, alienate, transfer, assign, disclose, disseminate or divulge the disclosing Party’s Confidential Information to any person or entity (including employees of the receiving Party who do not need to know the Confidential Information in order for the receiving Party to fulfill its obligations under this Agreement) without the disclosing Party’s prior written permission; (iv) not directly or indirectly use the disclosing Party's Confidential Information for the benefit of any individual, business, profession, partnership, corporation, joint venture, limited liability company or other endeavor including itself, nor in any way utilize or exploit any of the disclosing Party’s Confidential Information commercially, nor prepare any derivative work from or predicated on any Confidential Information of the disclosing Party; and (v) not reproduce, copy, or duplicate any Confidential Information of the disclosing Party under any circumstances. The foregoing shall not apply to information that: (a) was previously known to receiving Party free of any obligation to keep confidential; (b) is or becomes part of the public domain without breach of this Agreement; (c) is received from a third party as a matter of legal right; (d) is approved for public release by written authorization of an authorized representative of the disclosing Party; or (e) is required to be disclosed by any law, regulation, order of a court, regulatory agency or other authority of competent jurisdiction, or other legal process.
5. Content Changes. CompTIA retains the right to modify the Software and the Licensed Materials. If CompTIA believes, in its sole discretion, that the modifications could produce a different learning outcome or alter the location or availability of Software, CompTIA will provide Licensee with at least ninety (90) days’ notice of such proposed modifications. Should Licensee determine that such modification is not suitable for Licensee’s use, Licensee shall have the right to terminate this Agreement per Section 7 of this Agreement and CompTIA shall issue Licensee a credit for any licenses that were never activated.
6. Term and Termination.

   (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.

7. DISCLAIMER OF WARRANTIES. LICENSEE EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, EFFORT AND PERFORMANCE OF THE SOFTWARE IS WITH THE LICENSEE. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. COMPTIA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, MEDIA AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO LICENSEE UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO LICENSEE, BUT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Limitations on Liability. IN NO EVENT WILL COMPTIA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPTIA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, COMPTIA'S AGGREGATE LIABILITY SHALL BE LIMITED TO 1) THE MAXIMUM EXTENT PERMITTED BY LAW, OR 2) THE TOTAL AMOUNTS PAID TO COMPTIA UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LOWER. COMPTIA DOES NOT REPRESENT OR GUARANTEE THAT THE SOFTWARE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND COMPTIA HEREBY DISCLAIMS ANY LIABILITY RELATING THERETO.
9. Indemnification.

   (a) CompTIA Indemnification.

1. (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.

2. (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.

3. (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.

10. Release.  Licensee and its Authorized Users release and waive all claims against CompTIA, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing (the “Provider Group”), from any and all claims, damages, liabilities, costs and expenses arising out of Licensee or its Authorized Users’ use of the Software and the Documentation. California residents waive any rights they may have under § 1542 of the California Civil Code, which reads: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Licensee and its Authorized Users agree to release unknown claims and waive all available rights under California Civil Code § 1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Provider Group.
11. Miscellaneous.

    (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.

Prior Versions:

• Effective August 21, 2023