This Respectful Workplace License Agreement (this “Agreement”) is entered into as of
(the “Effective Date”) by and between you (“Customer”) and LearnVibe, LLC, a Maryland limited liability company doing business as LawFirmElearning (“LawFirmElearning”. By clicking "I have reviewed and accept the Respectful Workplace Terms", you confirm that you have read the terms and conditions, that you understand them and that you agree on behalf of your firm to be bound by them.
LawFirmElearning provides an on-demand e-learning content service called Respectful Workplace On-Demand Learning, through which subscribing members can select to license a pre-selected number of Respectful Workplace “SkillBurst”® e-learning courses during the Term, for viewing as is or for further customization by LawFirmElearning, at the member’s option. The parties have agreed that LawFirmElearning will provide such learning courses to Customer and, if the parties have so agreed for Customer’s Account, customize them to fit certain requirements of Customer’s. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, including those outlined on the Account (which are incorporated into this Agreement by this reference), the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below.
The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Account” means the provisions of Customer’s account for products and services provided pursuant to this Agreement, as set forth on an order on LawFirmElearning’s standard form referencing this Agreement and executed by each party, or as otherwise agreed between the parties and recorded by LawFirmElearning in its online customer portal. The provisions of the Account may change from time to time, as agreed between the parties pursuant to the preceding sentence.
1.2. “Customized SkillBurst” means any SkillBurst e-learning module or other work of authorship created pursuant to Customization Services.
1.3. “Customer Content” means audio content, videos, other works of authorship, and other assets Customer contributes to Customized SkillBursts.
1.4. “Customization Services” means such LawFirmElearning SkillBurst-customization services as are set forth in the Account, if any.
1.5. “SkillBurst” means an on-demand self-paced e-learning module developed and provided by LawFirmElearning and known as a SkillBurst®.
1.6. “Term,” “Initial Term,” and “Renewal Term” are defined in Subsection 11.1 below.
1.7. “Administrative Services” means any services performed by LFE to address administration of user accounts, administration of course assignments and compliance dates, ongoing account maintenance, delivery of monthly summary reports (course completions for the prior month, completions due in the current month), and any other adhoc reporting or other maintenance activities - if applicable and included in Customer's Account.
2. LICENSE, RESTRICTIONS, & ACCOUNT
2.1. As of the Effective Date, LawFirmElearning grants Customer a nonexclusive license to use the specific SkillBursts selected by the Customer, as listed in Customer’s Account, solely for purposes of educating lawyers or staff-members employed by Customer, provided Customer complies with the restrictions set forth in Section 2.2 below.
2.2. Restrictions. Copies of the SkillBursts created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the SkillBursts themselves. Furthermore, Customer receives no rights to the SkillBursts other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer will not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the SkillBursts; (b) play or perform the SkillBursts for Customer’s clients or other third parties, except to the extent specifically authorized in the Account; or (c) use the SkillBursts for service bureau or time-sharing purposes.
If called for in the Account, LawFirmElearning will provide Customization Services. Customer will provide such assistance and cooperation as are necessary or convenient to facilitate Customization Services as called for in the Account.
3.1. Acceptance. Each Customized SkillBurst will be considered accepted (“Acceptance”) when Customer provides LawFirmElearning written notice of acceptance or 15 business days after delivery, if Customer has not first provided written notice of rejection. Customer may reject a Customized SkillBurst only in the event that it materially deviates from the written requirements of the Account or other written agreement between the parties on such requirements, and only via written notice setting forth the nature of such deviation. In the event of rejection, LawFirmElearning will correct the deviation and redeliver the Customized SkillBurst. After redelivery pursuant to the previous sentence, the parties will again follow the acceptance procedures set forth in this Section 3.1. Notwithstanding any other provision of this Agreement, if after any rejection LawFirmElearning concludes, in its sole discretion, that successful Customization Services are not commercially practical, it may terminate this Agreement for convenience, provided it returns all fees prepaid hereunder.
3.2. Upon Acceptance, each Customized SkillBurst will constitute one of the SkillBursts licensed pursuant to Section 2.1 above and will thereafter be subject to this Agreement’s terms regarding the SkillBursts, including without limitation the provisions of Articles 2 (License & Restrictions) and 8 (Indemnification), except as specifically set forth below in this Article 3. For the avoidance of doubt and subject to Section 3.3 (Customer Content) below: (a) this Agreement does not transfer to Customer any ownership of intellectual property rights in or to SkillBursts or other works of authorship or assets incorporated into Customized SkillBursts; (b) as between the parties, LawFirmElearning remains the sole owner of all intellectual property rights in or to SkillBursts, other works of authorship, and other assets incorporated into Customized SkillBursts; and (c) Customer will cease all use of Customized SkillBursts, even if they incorporate Customer Content, upon termination of this Agreement or expiration or termination of the License Term.
3.3. Customer Content. Customer hereby grants LawFirmElearning a license to reproduce, modify, and otherwise use Customer Content, solely as necessary or useful to provide Customization Services to Customer. This Agreement does not transfer to LawFirmElearning any ownership in or to any intellectual property rights in Customer Content. As between the parties, Customer remains the sole owner of all intellectual property rights in and to Customer Content. The parties recognize and agree that Customized SkillBursts incorporating Customer Content may be subject to intellectual property rights owned by each party, without any transfer of ownership from one to the other.
4. FEES & REIMBURSEMENT
4.1. Fees. Customer will pay LawFirmElearning as follows:
(a) License Fees. For the licenses granted in Section 2.1 (License) above, Customer will pay the annual license fees listed on LawFirmElearning’s then current rate sheet.
(i) Customer recognizes and agrees that: (A) LawFirmElearning may increase or decrease the fees listed on the rate sheet at any time, in its sole discretion; (B) such a change will become effective for the Renewal Term if such change is announced at least 45 days prior to the start of such Renewal Term; and (C) Customer may decline such Renewal Term in response to any such change.
(b) Customization Services Fees. For Customization Services, Customer will pay LawFirmElearning’s standard fees for customization in effect as of the date customization services are performed. Customer recognizes and agrees that fees provided by LawFirmElearning in response to specific customization requests are estimates, unless LawFirmElearning specifically agrees otherwise, and that actual fees may vary.
(ii) In the event that the parties elect to license additional SkillBursts to the Account during an Initial Term or Renewal Term such that the total quantity of SkillBursts selected during the term exceeds the quantity for which fees were paid, fees for such added SkillBursts will automatically be added to those due pursuant to this Subsection 4.1(a). LawFirmElearning may invoice Customer for such additional fees on any subsequent invoices. Removal of SkillBursts from the Account will not reduce fees until the following Renewal Term.
(c) Administrative Fees. If applicable based on Customer License, up to three hours of Administrative Support per month is included with this subscription. Additional monthly Administration Support efforts beyond the allotted three hours is charged at $85 per hour.
4.2. Invoices. Payments pursuant to Subsection 4.1(a) (License Fees) above are due in full in advance within 30 days of the Effective Date (for year one), within 30 days after the start of the second year (for year two), and within 30 days after the start of each Renewal Term. All other payments pursuant to this Agreement are due monthly in arrears within 30 days of invoice.
5. IP & FEEDBACK
5.1. IP Rights in the SkillBursts. LawFirmElearning retains all right, title, and interest in and to the SkillBursts, as well as all elements of Customized SkillBursts other than Customer Content, except to the extent of the limited licenses specifically set forth in Section 2.1 (License). Customer recognizes that the SkillBursts, their components, and all other components of Customized SkillBursts are protected by copyright and other laws.
5.2. Feedback. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of LawFirmElearning’s products or services. LawFirmElearning has not agreed to and does not agree to treat as confidential any Feedback that Customer (including its employees and other staff-members) provide to LawFirmElearning, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict LawFirmElearning’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Notwithstanding the provisions of Article 6 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information.
6.1. Confidential Information. “Confidential Information” refers to any of the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 10 business days; and (c) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret. LawFirmElearning’s Confidential Information includes, without limitation, (d) the SkillBursts. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets. No information provided by Customer will be considered Confidential Information unless provided to facilitate Customization Services. Strategies, methods, other potential content for current or future videos disclosed in Customer Content or otherwise provided or suggested by Customer do not constitute Confidential Information.
6.2. Nondisclosure. Recipient will not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) will not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose; and (b) will not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention.
6.3. Injunction, Return, & Rights. Recipient agrees that breach of this Article 6 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security. Upon termination of this Agreement, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
6.4. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) IMMUNITY. An individual will not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
During the Term and at any time during the 12 months thereafter, LawFirmElearning may audit Customer’s use of SkillBursts on 30 days’ advance written notice. Customer will cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of SkillBursts, subject to Customer’s reasonable security protocols and procedures. Such audit will not unreasonably interfere with Customer’s business activities. If LawFirmElearning discovers material unauthorized use, reproduction, distribution, or other exploitation of SkillBursts, Customer will reimburse LawFirmElearning for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as LawFirmElearning may have. LawFirmElearning may not conduct an audit more than once per year. Customer’s books and records disclosed pursuant to an audit will be considered Customer’s Confidential Information pursuant to Article 6 above, unless Customer informs LawFirmElearning to the contrary in writing.
8.1. Indemnity. Customer will indemnify, defend and hold harmless LawFirmElearning and LawFirmElearning’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging: (a) Customer’s use of, misuse of, or failure to use any SkillBurst, including without limitation claims of legal malpractice or other professional liability and claims of personal injury or loss of or damage to real or tangible personal property; and (b) copyright or other intellectual property infringement by the Customer Content. (As used in this Article 8, LawFirmElearning’s “Associates” are LawFirmElearning’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
8.2. Indemnity from LawFirmElearning. LawFirmElearning will indemnify, defend and hold harmless Customer against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging copyright or other intellectual property infringement by the SkillBursts. LawFirmElearning’s obligations in the preceding sentence do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) revisions to a SkillBurst made without LawFirmElearning’s written consent; (c) Customer’s failure to incorporate SkillBurst updates or upgrades that would have avoided the alleged infringement; (d) Customer Content or LawFirmElearning modification of SkillBursts in compliance with directions provided by Customer, including without limitation to create Customized SkillBursts; or (e) use of the SkillBursts in combination with hardware or software not provided by LawFirmElearning.
8.3. Litigation. Customer’s obligations pursuant to Sections 8.1 and 8.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments; and (b) will be excused to the extent that LawFirmElearning’s failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Customer will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided LawFirmElearning will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
9. LIMITATION OF LIABILITY
9.1. Dollar Cap and Consequential Damages. Except with regard to its obligations pursuant to Section 8.2 above, LAWFIRMELEARNING’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES DUE TO LAWFIRMELEARING FOR THE INITIAL TERM OR RENEWAL TERM (as defined below in Section 11.1) DURING WHICH THE EVENT GIVING RISE TO THE LIABILITY TOOK PLACE. IN NO EVENT WILL LAWFIRMELEARNING BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE LIABILITIES LIMITED BY THIS SECTION 9.1 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF LAWFIRMELEARNING IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 9.1, LawFirmElearning’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, LawFirmElearning’s liability limits and other rights set forth in this Section 9.1 apply likewise to LawFirmElearning’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
9.2. No Warranties. LawFirmElearning provides the SkillBursts “as is.” LAWFIRMELEARNING MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. Without limiting the generality of the foregoing: (a) LawFirmElearning does not warrant that the SkillBursts will perform without error or run without immaterial interruption; (b) LawFirmElearning provides no warranty regarding, and will have no responsibility for, any claim arising out of a modification of the SkillBursts made by anyone other than LawFirmElearning or use of the SkillBursts with hardware or software not recommended by LawFirmElearning; and (c) LawFirmElearning makes no warranty that SkillBursts will meet CLE or other compliance requirements; Customer is the provider of record for any associated compliance training and retains all responsibility for determining whether a course is eligible to meet requirements for compliance and/or CLE credit;
LawFirmElearning may include Customer’s name and logo on its websites and in other marketing materials, provided no reference to Customer is inaccurate. Customer may reject any use of its logo or any of its trademarks that places it in a false light or is inconsistent with its standards for use of its trademarks, in which case LawFirmElearning will promptly correct or remove such use on any persistent or future marketing material; provided Customer will not issue such rejection unreasonably. Goodwill associated with Customer’s logo and any trademark inures solely to Customer, and LawFirmElearning will take no action pursuant to this Article 10 to damage the goodwill associated with any such logo or trademark.
11. TERM & TERMINATION
11.1. Term. The “Initial Term” of this Agreement is the 2-year period following the Effective Date (or 1-year period if so selected). This Agreement will renew automatically for an additional year, each a “Renewal Term,” unless either party gives written notice of its intent not to renew 30 days before the end of the current Initial Term or Renewal Term. The Initial Term and any Renewal Terms collectively constitute the “Term” of this Agreement.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach.
11.3. Termination for Convenience. Customer may terminate this Agreement at any time for convenience, but such termination will not excuse Customer’s obligation to pay (a) fees pursuant to Subsection 4.1(a) (License Fees) for the Initial Term or Renewal Term during which notice of termination issued or (b) fees pursuant to Subsection 4.1(b) (Customization Services Fees) for services already performed.
11.4. Effects of Termination. Upon termination of this Agreement or License Term, Customer will cease all use of the SkillBursts and delete, destroy, or return all copies of the SkillBursts in its possession or control. The following will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 2.2 (Restrictions), 5 (IP & Feedback), 6 (Nondisclosure), 7 (Audit), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Users. Customer is responsible and liable for the acts and omissions of its employees and other staff-members (including without limitation law firm partners) related to this Agreement and to the products and services provided pursuant to this Agreement, as if they were Customer’s own acts and omissions.
12.3. Notices. Notices pursuant to this Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. For LawFirmElearning: info@LawFirmElearning.com. For Customer: the contact point recorded in the Account.
12.4. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.5. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without LawFirmElearning’s prior written consent. Except to the extent forbidden in this Section 13.5, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.6. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.7. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.8. Bankruptcy Rights. The rights granted to Customer in Section 2.1 (License) are licenses to “intellectual property,” as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If LawFirmElearning is subject to any proceeding under the United States Bankruptcy Code, and LawFirmElearning as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under Section 2.1, as limited by this Agreement, to the maximum extent permitted by law.
12.9. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Maryland, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Montgomery County, Maryland. This Section 13.9 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.10. Construction. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument. This Agreement may not be amended except through a written agreement by authorized representatives of each party.