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MSC Software e-Learning Terms
(General – May 2014 Version)
- Customer”means either you personally, if you purchase the e-Learning offering for yourself, or the company or other legal entity for which you are obtaining the e-Learning offering. If Customer is a company or a legal entity, it shall be responsible for ensuring that its personnel comply with these Terms.
- “e-Learning Content” means online course content and materials (e.g., lecture slides, videos, exams, workshop files) made available through MSC’s web-based e-Learning environment.
- “e-Learning Order” means an MSC Order Schedule (or other order document or form) agreed to by Customer and MSC, which incorporates these Terms, by reference or otherwise, and sets forth the e-Learning subscription ordered.
- “MSC” means the MSC Software entity from whom the e-Learning offering is ordered.
- “Terms” means these MSC Software e-Learning Terms. Additional terms with specific meanings are defined near where they first appear in these Terms
- e-Learning Offerings.
- “e-Learning” is a web-based learning environment that provides on-demand access to e-Learning Content. When an e-learning subscription (“Subscription”) is acquired, access to the e-Learning Content included with that Subscription will be made available for the duration of the Subscription period (e.g., one-year for an annual Subscription). The Subscription period for each Subscription shall be as set forth in the applicable e-Learning Order.
- e-Learning access is licensed on a named user account basis. The number of named users for each Subscription shall be limited to the quantities for which Customer has validly acquired access. A user account may not be shared or used by anyone other than the one employee (or one individual, where the Customer is an individual) to whom the named user account is assigned. Each user shall maintain the security of his/her account information (e.g., User ID and Password), and shall not share or disclose account information or e-Learning Content to others. Shared, group or generic User IDs or Passwords are strictly prohibited. Once assigned to a user, a user account may not be transferred to anyone else, except upon MSC's prior written consent which MSC may withhold in its sole discretion.
- Payment & Taxes.
- Fees, Charges, Taxes and Payment. Customer shall pay in full all fees payable under this agreement, including all e-Learningrelated fees set forth or referenced in the e-Learning Order. Payment terms shall be as set forth in the e-Learning Order. Fees are exclusive of all applicable sales, use, value added, and other taxes, and Customer will be responsible for payment of all such taxes (other than taxes based on MSC’s net income), and any related penalties and interest, payable in connection with the purchase or provision of MSC’s training offerings. Any amount not paid when due will bear interest until paid at the rate of 11/2% per month or the maximum rate of interest allowed by applicable law, whichever is less. In addition, MSC may, without waiving any other rights or remedies to which it may be entitled, suspend access to a Customer account until all outstanding invoices have been paid and/or seek collection of all amounts due, including reasonable legal fees and costs of collection. All fees due and payable for e-Learning shall be non-cancelable and the sums paid nonrefundable.
- If an MSC e-Learning offering is ordered by Customer from an authorized MSC distributor, then fees to be paid by Customer to distributor (and related payment terms) will be as agreed between the distributor and Customer.
- Promotions. To the extent promotional pricing is offered by MSC, such promotional pricing shall be subject to any and all unique eligibility requirements for each individual promotion. In addition, promotional pricing may not be combined with any other offers or discounts, including without limitation, MSC distributor discounts.
- MSC Property.
- Ownership. Nothing in these Terms will be deemed to convey to Customer any title, ownership, or other intellectual property rights in or related to e-Learning Content, or any other property of MSC or third parties, and Customer agrees not to assert any such rights. All rights in and to e-Learning Content and other MSC property not expressly granted to Customer under this agreement are reserved by MSC (and/or its suppliers, as applicable). The e-Learning Content and all worldwide intellectual property rights therein, are and remain the property of MSC (and/or its suppliers, as applicable).
- Additional Restrictions and Protections. Customer shall not: (i) copy e-Learning Content, or any portion thereof, without MSC’s prior written consent; (ii) use recording equipment or otherwise record e-Learning Content or any portion thereof; (iii) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of any portion of e-Learning Content; (iv) use MSC trademarks, trade names, or other MSC designations without MSC’s prior written consent; (v) sublicense, rent, loan, lease, sell, or otherwise transfer all or part of any e-Learning Content; (vi) disable, modify or circumvent any license management system accompanying any e-Learning offering; (vii) attempt to gain unauthorized access to e-Learning Content or any portions thereof; (viii) remove, alter, or obscure any proprietary notices, labels, or marks from any e-Learning Content; (ix) exceed the number of permitted named users for the applicable Subscription; or (x) otherwise use, copy or disclose e-Learning Content except as expressly permitted under this agreement.
- Orders. MSC reserves the right to accept or reject any e-Learning order.
- Lost Data. Customer acknowledges that MSC shall not be responsible for any lost or damaged data. Customer agrees to maintain an adequate data recovery system, including without limitation, keeping the data adequately duplicated and documented, and keeping a current back-up copy of its data in order to facilitate the restoration of data in the event that any data is lost.
- Minimum System Requirements. Customer is responsible for meeting the minimum computer system requirements for the applicable e-Learning offering.
- Individual Academic Students. From time to time, certain e-Learning offerings and/or special pricing may be made available for academic students. Individuals ordering or registering as an academic student represent that they meet MSC’s student eligibility requirements. MSC reserves the right to require documentation and information to verify student status, including a student ID. Further, students may be required to register using a university-issued student email account.
- No MSC Software Product Licenses Included. e-Learning offerings do not include or entitle use of any MSC software product.
- No Warranty. E-LEARNING OFFERINGS AND E-LEARNING CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITH NO WARRANTIES OF ANY KIND. MSC DOES NOT WARRANT THAT ACCESS TO E-LEARNING OFFERINGS OR ELEARNING CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE.
- Limitation on Liability. NEITHER MSC NOR ITS SUPPLIERS, AFFILIATES, DIRECTORS, EMPLOYEES OR AGENTS WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST DATA, SAVINGS, PROFITS OR REVENUES) ARISING FROM OR RELATED TO THIS AGREEMENT OR THE PROVISION OF E-LEARNING OFFERINGS, EVEN IF MSC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR CLAIM. MSC'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF, IN CONNECTION WITH OF OR RELATING TO ANY E-LEARNING OFFERING, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO AND WILL IN NO EVENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY MSC FOR THAT E-LEARNING OFFERING THAT IS THE SUBJECT MATTER OF, OR IS DIRECTLY RELATED TO THE CAUSE OF ACTION. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO E-LEARNING OFFERINGS MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUED. TO THE EXTENT ANY APPLICABLE LAW LIMITS THE SCOPE OF THIS SECTION 7, THESE TERMS SHALL BE INTERPRETED TO CONFORM TO SUCH LAW IN A MANNER THAT LIMITS MSC'S LIABILITY TO THE FULLEST EXTENT ALLOWED BY LAW.
- Indemnification by MSC. MSC shall, at its own expense and subject to the terms of this agreement indemnify, defend and hold Customer harmless from and against any claims brought against Customer by a third party alleging that the e-Learning offering (including related e-Learning Content) as furnished under this agreement and used as permitted under this agreement infringes any copyrights, trademarks, patents, or misappropriates any trade secrets, provided that Customer gives MSC prompt written notice of such claim, assistance and information reasonably requested by MSC, and the sole authority to defend and settle such claim. Notwithstanding the foregoing, MSC shall have no obligation for any infringement or misappropriation arising from Customer’s breach of this agreement, or content submitted by Customer. In the event that a final injunction is issued against the use of the e-Learning offering by Customer for reason of infringement or misappropriation, or if, MSC reasonably believes that the e-Learning offering is likely to become the subject of a claim of infringement or misappropriation, MSC may, at its sole option and expense, either: (i) modify the e-Learning offering so that it no longer infringes or misappropriates; (ii) obtain for Customer, at MSC's expense, the right to continue use of such e-Learning offering in accordance with this agreement; or (iii) if none of the foregoing is commercially feasible, terminate Customer’s Subscription and refund to Customer any prepaid Subscription fees covering the remainder of the term of the terminated Subscription. This Section 8.1 states MSC’s entire liability and Customer’s sole and exclusive remedy for infringement or misappropriation claims.
- Indemnification by Customer. Customer shall indemnify, defend and hold MSC harmless from and against any claims brought against MSC by a third party alleging that content submitted by Customer, or Customer’s use of the e-Learning offerings (including related e-Learning Content) in breach of this agreement, infringes or misappropriates any intellectual property rights or violates applicable law.
- Compliance with Laws. Customer acknowledges that the MSC e-Learning offerings and e-Learning Content are subject to U.S. export jurisdiction. Customer and its users shall comply with all applicable international and national laws that apply to the e-Learning and e-Learning Content, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. Customer further agrees not to export or re-export the e-Learning Content, technical data or other materials provided in connection with e-Learning offerings without first obtaining, at Customer's sole cost and expense, any required authorization from the applicable governmental authority as may be required by applicable law.
- Termination. This agreement may be terminated as follows: (i) by either party upon thirty (30) days prior written notice upon the occurrence of a material breach by the other party of its obligations under this agreement if such breach remains uncured at the end of the notice period, provided however that no cure period shall apply as to any material breach of Sections 3.1, 4, and 9 of this agreement by Customer and MSC may terminate this agreement effective immediately upon written notice; or (ii) by MSC if Customer makes a general assignment for the benefit of its creditors, is the subject of an involuntary bankruptcy petition, or is otherwise subject to insolvency or dissolution proceedings unless Customer is released from such proceedings within ninety (90) days. Upon termination of this agreement, all rights granted to Customer under this agreement will automatically terminate, and Customer agrees to immediately cease using or accessing the e-Learning Content delivered under this agreement and erase any such e-Learning Content in its possession. Similarly, upon expiration of any Subscription period, all rights granted to Customer with respect to that Subscription will expire and Customer agrees to immediately cease using or accessing the e-Learning Content for that Subscription and erase any such e-Learning Content in its possession. Termination or expiration of Subscriptions shall not relieve Customer from any obligation accrued on or before the date of termination. Provisions that survive termination of this agreement include those in Sections 3.1, 4, 6, 7, 8, 9, 11 and others which by their nature are intended to survive.
In no event shall these Terms apply to any MSC software products, maintenance or other services, all of which are out of the scope of this agreement. The scope of this agreement is limited to e-Learning offerings. In the event an order document contains orders for both (i) e-Learning Subscriptions and (ii) MSC software product licenses, maintenance and/or other services; these Terms shall apply only to e-Learning Subscription(s) on the order document. Termination of this agreement shall in no way affect any software license agreements entered into by Customer and MSC; the terms and conditions of such software license agreements shall not apply to e-Learning governed by these Terms.
- Choice-of-Law. This agreement shall be construed and disputes hereunder shall be settled under the laws of the State of California (United States) without regard to its conflict of laws principles. MSC and Customer agree to submit to the exclusive jurisdiction of, and venue in, the courts of Orange County, California, USA, in any dispute arising out of or relating to this agreement. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this agreement.
- Severability. If and to the extent any provision of this agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.
- Force Majeure. Notwithstanding anything to the contrary herein, MSC shall not be deemed to be in default of any provision or obligation of this agreement or be liable to Customer or to any third party for any delay, error, failure in performance or interruption of performance due to any act of God, war, insurrection, acts of terrorism, riot, boycott, strikes, interruption of power service, interruption of Internet or communications service, labor or civil disturbance, acts of any other person not under the control of MSC.
- Assignment; Subcontracting. Customer may not assign or transfer this agreement or any of its rights or obligations hereunder, without the prior written consent of MSC, which MSC may withhold in its sole discretion. MSC may use subsidiaries, affiliates, service providers and/or subcontractors in the performance of its obligations hereunder. MSC may assign this agreement to its affiliates and successors.
- Authority. The individual entering into this agreement on behalf of the Customer represents that he/she is authorized to act on behalf of the Customer and to bind Customer to this agreement.