This is a Subscription and License Agreement (“Agreement”)between a member of the Texas A&M University system, an agency of the State of Texas (“TAMU”) with its principal address at the College of Veterinary Medicine, 668 Raymond Stotzer Parkway, College Station, TX 77843 acting by, through, and on behalf of its College of Veterinary Medicine and Biomedical Sciences and the Subscriber. This Agreement is effective for five years from the date the Subscriber creates an account. Throughout this Agreement, “Party” means TAMU or Subscriber; “Parties” mean TAMU and Subscriber.
Accordingly, in consideration of the premises and promises hereof, the Parties agree as follows:
1. Definitions
1.1 “Confidential Information” of a Party means any information in a tangible form that is disclosed by that Party pursuant to this Agreement and that (a) is identified “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; or (b) would reasonably be considered to be confidential. This Agreement and its contents shall also be considered Confidential Information.
1.2 “Documentation” means any standard TAMU documentation distributed by TAMU as a part of the Software.
1.3 “Malicious Code” means computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.4 “Proprietary Rights” means all rights to the Software, Documentation, and TAMU’s Confidential Information, including, but not limited to, patents, copyrights, trademarks, trade names, trade secrets, or rights to apply for any of the same, irrespective of whether such rights arise under U.S. or international laws.
1.5 “Software” means the computer programs and applications (including but not limited to web-based applications, together with applicable Documentation and the accompanying media, if any) referenced in the Subscription.
1.6 “Subscriber Data” means any electronic data provided by Subscriber to TAMU.
1.7 “Subscription” shall have the meaning set forth in Section 2.1.
1.8 “Subscription Fees” means the fees payable by Subscriber for the Subscription.
1.10 “Subscription Term” means the period of time for which Subscriber paid the Subscription Fees.
1.11 “StepStone Website” means stepstonelearning.net.
1.12 “Subscriber Trademark” means any trademark, logo, symbols, or other proprietary designs of Subscriber that are to be used in conjunction with the services to be provided by TAMU as described herein.
1.13 “User” means each person who is authorized by Subscriber to access or use the Software, directly or indirectly.
2. Grant of License
2.1 License. Subject to the terms and conditions of this Agreement, TAMU agrees to provide Subscriber the subscription services as described in Schedule A to this Agreement (“Subscription”). TAMU grants to Subscriber as part of the Subscription a non-exclusive, nontransferable right to use TAMU Software. Subject to the terms of this Agreement, Subscriber may allow its employees and independent consultants to use the Software solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
2.2 Restriction on Use. Access to the Software is only for the maximum number of authorized Users for whom Subscriber has paid the Subscriber Fees. All fees paid for the Subscription to the Software are nonrefundable. Subscriber may only exceed the number of ordered Users if Subscriber increases its order and pays additional Subscription Fees. Other than as expressly authorized in this Section 2 or as expressly permitted by applicable law, Subscriber may not: (a) copy the Software or any portion thereof; (b) use the Software to store or transmit Malicious Code, or infringing, tortious or otherwise unlawful materials; or (c) interfere with the business or operations of TAMU.
2.3 Delivery of the Software. The Software is provided to Subscriber through the StepStone Website.
2.4 Audit Rights. TAMU may, at any time, audit Subscriber’s use of the Software by accessing the Software through the TAMU servers to ensure compliance with the terms of this Subscription Agreement. Unless specifically authorized in writing in advance by TAMU, Subscriber may not rent, lease or timeshare the Software or provide subscription services for the Software or permit others to do so.
2.5 Documentation. TAMU hereby grants to Subscriber a non-exclusive, non-transferable, non-sublicenseable, internal use only license to use the Documentation solely for the purposes of utilizing the licenses granted in Section 2.1 above.
2.6 Trademarks and Branding. Subscriber shall not use or have any rights to any trademarks, service marks, logos, symbols or other proprietary designs of TAMU. If Subscriber is subscribing to the Enterprise Level Service Plan, Subscriber will provide a copy of the Subscriber Trademarks to TAMU and TAMU shall include an identical version of such Subscriber’s Trademarks on the Software accessed by Subscriber, StepStone Website, and related pages as described below. Subscriber hereby grants and TAMU now accepts a license to Subscriber Trademarks for the purpose described in the preceding sentence and also for the purpose of permitting TAMU to include Subscriber Trademarks on the Subscriber’s real time StepStone preview and SCORM 1.2 compliant output file and also on any web pages or other materials used to promote the Software. Subscriber acknowledges that the Subscriber Trademarks may appear in conjunction with any trademarks, service marks, logos, symbols or other proprietary designs of TAMU. TAMU may publicly state that Subscriber is a party to this Agreement. This provision shall survive the expiration or early termination of this Agreement.
3. Prices and Payments
3.1 Prices. Subscriber hereby subscribes to a five year plan as described in Schedule A, which is attached hereto and incorporated by reference. Subscriber shall pay the amount stated on Schedule A as described below.
3.2 Payment. Subscriber shall make payment for the amounts described in a Subscription within 30 days of the date of TAMU’s invoice.
3.3 Mechanism. Subscriber shall tender each payment to TAMU within thirty (30) days of receipt of the invoice. All amounts not received when due shall bear interest at the rate of 1% per month or the highest rate permitted by law, whichever is less. Subscriber shall tender all such payments in U.S. dollars using the following instructions provided by TAMU.
Please reference on each payment the receivable or invoice number, TAMU department name, and department account number.
3.4 Pricing Changes. TAMU shall have the right to change the fees and prices for the Software at any time. Prices shall be effective as of the date they are posted on the TAMU website located at www.tamucet.org. Notwithstanding the foregoing, Price changes shall not affect the Subscriber’s then current Subscription fees and shall only come into effect at the time of renewal of the Subscription.
3.5 Late Payments. All amounts that are not paid by Subscriber by the date required by this Agreement shall be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum allowed by applicable law. In the event that any payment due under this Agreement is overdue, TAMU reserves the right to suspend the rights granted under this Agreement until such delinquency is corrected.
4. Support and Training
4.1 Product Support Services. TAMU shall provide Standard Technical Support services to Subscriber during the Term, in accordance with the terms stated in Schedule A and as may be amended from time to time by TAMU. Any such amendment shall be effective as of the date it is posted on the TAMU website located at www.tamucet.org. For Software Technical Support contact TAMU at cethelpdesk@cvm.tamu.edu. This help desk is staffed Monday – Friday 8am – 5pm CST. TAMU will, to the extent it is reasonably able to do so, respond to all help desk tickets within 24 business hours.
4.2 Updates and Upgrades. TAMU may from time to time conduct updates and upgrades to the Software, which may temporarily affect the use of the Software. To the extent that the use of the Software will be affected during such TAMU updates and upgrades, TAMU will provide prior notice of such updates and upgrades to Subscriber and will, to the extent possible, be conducted outside of regular business hours.
4.3 Operating Parameters. The TAMU StepStone Software minimum web browser requirements are as follows: Chrome 49, Internet Explorer 10, Firefox 44, Safari 9, and Edge 31. TAMU makes no guarantee of the performance of the Software on browsers other than those stated above. Live web hosting is required for the authoring and account management tools provided in the StepStone Software. The StepStone Software utilizes online services such as Vimeo to display video content. The Subscriber is responsible for establishing and maintaining an account with approved streaming services to host video content embedded into StepStone.
4.4 Output File. The output generated with the StepStone Software creates a SCORM 1.2 compliant file. Subscriber is responsible for mounting and maintaining the SCORM files within Subscriber’s learning management system (LMS). In the event the Subscriber requires technical support to troubleshoot problems related to the generation of SCORM 1.2 file(s) and mounting of the file(s) on Subscriber’s LMS, TAMU requires a minimum of five business days to respond to the Subscriber’s request. A live Internet connection is required for the end user accessing the learning resource output files via the learning management system.
5. Proprietary Rights and Protection
5.1 Acknowledgment. The Software is licensed as a subscription, not sold, by TAMU to Subscriber, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Software. As between TAMU and Subscriber, TAMU owns and will own all rights, title, and interest, including all intellectual property rights therein and thereto, in and to the Software and Documentation, and no title to the Proprietary Rights is transferred to Subscriber. The use by Subscriber of the Proprietary Rights is authorized only for the purposes set forth herein and, upon termination of this Agreement for any reason, such authorization will cease. Subscriber will not have any rights in or to the Software except as expressly granted in this Agreement. TAMU reserves to itself all rights to the Software not expressly granted to Subscriber under this Agreement.
5.2 No Other Rights. Subscriber may not, directly or through any person or entity, in any form or manner, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code from the Software, except as explicitly permitted under this Agreement or expressly permitted by applicable law.
5.3 Subscriber Data. TAMU acknowledges that all Subscriber Data belongs to Subscriber and that other than specifically provided herein, TAMU acquires no rights, title or interest thereto. TAMU shall maintain commercially reasonable safeguards for the protection and security of Subscriber Data. Other than as specifically permitted by Subscriber in writing, TAMU shall not: (a) modify the Subscriber Data; or (b) disclose the Subscriber Data unless compelled by law. TAMU shall store the Subscriber Data for the duration of the Agreement and upon termination/expiration of the Agreement TAMU shall archive such Subscriber Data and make it available to Subscriber for a period of 6 months from the date of Agreement expiration or termination.
6. Confidentiality
6.1 Nondisclosure. Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except as set forth in this Agreement, and shall use best efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the Parties shall use at least the same degree of care that it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information.
6.2 Exceptions. Notwithstanding Section 6.1, neither Party shall have liability to the other with regard to any Confidential Information of the other that the receiving Party can prove: (a) was publicly available at the time it was disclosed or has since become publicly available through no fault of the receiving Party; (b) was known to the receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of the disclosing Party; (d) was independently developed by the receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; or (e) becomes known to the receiving Party, without restriction, from a source other than the disclosing Party without breach of this Agreement by the receiving Party and otherwise not in violation of the disclosing Party’s rights.
6.3 Remedies. Any breach of the restrictions contained in this Section 6 is a breach of this Agreement that may cause irreparable harm to the non-breaching Party. Any such breach shall entitle the non-breaching Party to seek injunctive relief in addition to all other legal remedies.
7. Liability
7.1 Injunctions. In the event that use of the Software is, or in TAMU’s sole opinion is likely to be, enjoined due to claims of infringement by a third party, TAMU, at its option and expense, may either (a) modify the Software so that they become non-infringing, (b) replace the Software with functionally equivalent non-infringing Software reasonably acceptable to Subscriber or, if the foregoing alternatives are not reasonably available to TAMU, (c) terminate this Agreement and refund a prorated portion of the Subscription Fee.
7.2 Limitation. THE FOREGOING PROVISIONS OF THIS SECTION 7 AND SECTION 10, BELOW, STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF TAMU AND THE SOLE AND EXCLUSIVE REMEDY OF SUBSCRIBER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ITS REPRODUCTION, DISTRIBUTION OR USE.
8. Warranties and Disclaimers
8.1 Limited TAMU Warranty. During the Subscription Term, TAMU represents that the Software will operate in substantial conformance with the then-current TAMU published Documentation under normal use. Notwithstanding the previous sentence, TAMU does not warrant that: (a) Software will be free from defects; (b) Software will satisfy all of Subscriber’s requirements; (c) Software will operate without interruption or error. TAMU shall use reasonable efforts to remedy any significant Software non-conformance reported to TAMU that TAMU can reasonably identify and confirm. TAMU or its representative will repair or replace any such nonconforming or defective Software. This paragraph sets forth Subscriber’s sole and exclusive remedy and TAMU’s entire liability for any breach of warranty or other duty related to the Software. Any unauthorized Software modification, tampering with the Software, Software use inconsistent with the accompanying Documentation, or related breach of this Agreement shall void the aforementioned warranty. EXCEPT AS EXPLICITLY SET FORTH HEREIN AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER TAMU WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS. TAMU DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. TAMU ONLY PROVIDES THE SOFTWARE USED TO CREATE THESE PRODUCTS AND EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON PRODUCTS THAT ARE BASED UPON OR CREATED THROUGH USE OF THE STEPSTONE SOFTWARE.
8.2 Subscriber Warranty and Indemnity. Subscriber represents and warrants that all material produced by Subscriber using the Software under this Agreement shall be original except for such portion as is included with permission of the copyright owner or owners thereof, or of the authorized licensee or licensees, that it shall contain no libelous, defamatory, or unlawful statements or materials, and will not infringe upon any copyright, trademark, patent, statutory, or other proprietary rights of others, and that Subscriber will indemnify and hold harmless TAMU from any costs, expenses, or damages, or any combination of the three resulting from any breach of this representation and warranty by Subscriber.
8.3 TAMU Disclaimer. Any TAMU trademarks appearing on any output files or other materials are not to be used by Subscriber to indicate or imply, directly or indirectly, endorsement by TAMU of any products, materials, or services provided or created by Subscriber.
9. Term and Termination
9.1 Term. This Agreement shall commence upon the Effective Date and remain in effect for twelve consecutive months. Unless this Agreement has been terminated as described below, Subscriber may extend the term of this Agreement for an additional twelve months by submitting to TAMU Schedule B (which is attached hereto and incorporated by reference) which has been signed by Subscriber no later than ten days before the scheduled expiration date of this Agreement. A maximum of four such renewals are permitted. After the fourth renewal, a new Agreement must be signed.
9.2 Termination for Cause. This Agreement is effective until the end of the Subscription Term for such use as is authorized, or until terminated by either Party. Subscriber may terminate this Agreement upon written notification to TAMU at least sixty (60) days in advance. However, Subscriber shall not be entitled to a refund of any prepaid or other fees. TAMU may terminate this Agreement if TAMU finds that Subscriber has violated the terms hereof. Upon termination by either Party, Subscriber shall cease using the Software. Except as set forth in the last sentence of this Section 9.2, if either Party defaults in the performance of any material provision of this Agreement, then the non-defaulting Party may give written notice of such default to the defaulting Party. If the non-defaulting Party gives such notice and the default is not cured within a 30-day period following receipt of the notice by the defaulting Party, then this Agreement shall automatically terminate. Notwithstanding the foregoing, if Subscriber breaches the provisions of Sections 2, 5, or 6 and such breach is not curable, then TAMU shall be entitled to terminate this Agreement effective immediately upon delivery of written notice to Subscriber.
9.3 Effect of Termination. If this Agreement is terminated, then TAMU will terminate Subscriber’s access to the Software and all of Subscriber’s rights and licenses with respect to the Software shall also terminate. Subscriber Data maintained by TAMU will be available for Subscriber as described in Section 5.3, above.
9.4 Survival. The provisions of Sections 1, 2.6, 5, 6, 7, 8, 9.3, 10, 11.3 (to the extent such name, logo, trademarks occur on pre-existing materials, press releases, and documents), 11.4, and all payment obligations shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of this Agreement.
10. Limitation of Liability
10.1 LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY RESULTING FROM A BREACH OF SECTIONS 2, 5 OR 6 OF THIS AGREEMENT (AS LIMITED IN SECTION 7.2, ABOVE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF DATA, LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL TAMU’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL SUBSCRIPTIONS FEES RECEIVED BY TAMU FROM SUBSCRIBER HEREUNDER IN THE PREVIOUS TWELVE MONTHS FROM THE DATE OF THE CLAIM. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS PAYABLE HEREUNDER BY SUBSCRIBER ARE BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. Miscellaneous
11.1 Assignment. Subscriber may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without TAMU’s prior written consent; any attempted assignment or transfer in violation of the foregoing will be void.
11.2 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.3 Marketing Activities. Subscriber agrees that TAMU may from time to time identify Subscriber (with its name, logo and/or trademark) as a TAMU Subscriber on its TAMU Website www.tamucet.org, as well as on sales and marketing materials or press releases.
11.4 Governing Law. This Agreement will be governed by the substantive and procedural laws of the State of Texas without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in the courts of Texas and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding. This Agreement will be written and construed in the English language.
11.5 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or 48 hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the Party to be notified at such Party’s address or email address as set forth in the Subscription Order, or as subsequently modified by written notice.
11.6 Severability. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
11.7 Independent Contractor. Neither Party (nor any agent or employee of that Party) is the representative of the other Party for any purpose, and neither Party has the power or authority as agent, employee or in any other capacity, to represent, act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
11.8 Export. Subscriber will comply with all applicable export and import control laws and regulations of the United States.
11.9 Force Majeure. Except for Subscriber’s obligations to pay TAMU hereunder, neither Party shall be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including any Internet or electronic communication failures.
11.10 Amendment. This Agreement may be amended only by a written document signed by both Parties. The terms on any purchase order or similar document submitted by Subscriber to TAMU will have no effect.
11.11 Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
SCHEDULE A
SUBSCRIPTION ORDER FORM
StepStone Service Plan for up to a 60 Month Term at a cost of $30 per month.
Authoring Logins
One
Projects
Unlimited
Custom Player skin
None
Data Storage
Unlimited
SCORM compliant file for LMS embed
Included
Price for per month
$30
AUTHORING REQUIREMENTS:
Recommended for Desktop:
Chrome 49+
Safari 9+
Firefox 44+
Internet Explorer 10+
Edge 31+
Internet Access: Broadband connection of 5.0 Mbps or greater.