Online Safety Association Participant Agreement

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Please read this Online Safety Association Participant Agreement (the “Agreement”) carefully before signing the Participation Agreement (“PA”).  The following terms and conditions of the Agreement will be legally binding on the Licensee upon execution of the PA.  The definitions of certain capitalized terms used in this Agreement are located in Section 1 below.

This Agreement governs Your use of Vivid Learning Systems, Inc.’s (“Vivid”) products and services.

If You are entering into this Agreement on Your own behalf, then the terms “You,” “Your” and “Licensee” mean the individual entering into this Agreement and such individual is personally bound by all of the terms and conditions of this Agreement.  If You are entering into this Agreement on behalf of a college, university, company, or other type of organization, You represent and warrant that You are acting in your capacity as an authorized representative or agent of such college, university, company, or other organization and that You have the authority to bind such organization to the terms and conditions of this Agreement.  If You are entering into this Agreement on behalf of an organization, the terms “You,” “Your” and “Licensee” mean such college, university, company, or other organization and all of its directors, managers, officers, employees, and agents.

Access to the Vivid Training or Participant Association Library is for Your training purposes and should not knowingly be used for competitive purposes

This Agreement was last updated on June 10, 2015.  It is effective between You and Us on the date You enter into an Participation Agreement, which is subject to this Agreement.

  1. Definitions

    The following definitions and/or terms shall have the meanings set forth below.

    “Agreement” means this Online Safety Association Participant Agreement and the Licensee’s PA.

    “Delivery Date” means the beginning date of the Period of Agreement.

    “Licensee Assignments” means any supplemental materials provided by Licensee to Licensee’s own faculty, staff, students or other users for use by such individual(s) in conjunction with the Vivid Training or any course(s) in the Participant Association Library.

    “Limited License” means a nonexclusive, non-transferable, limited, royalty-free, and fully-paid up license to use the training services, programs and content during the Period of Agreement.  Those holding a Limited License will only receive the compiled version of the course.  The training services, programs and content shall be used for internal training purposes only and cannot be gifted, given away, resold, sublicensed, or used for other commercial purposes.  Once the Period of Agreement ends the Limited License will terminate and You will no longer have the right to use any of the training services, programs and content.

    “PA” means the Participation Agreement.  By entering into a PA hereunder, a Licensee agrees to be bound by the terms of this Agreement as if it were an original party hereto.

    “Period of Agreement” means the time period set forth in the PA defining the initial period of time that the Licensee shall have the right to use the Vivid Training and Participant Association Library and any renewal periods arising from Section 3 of this Agreement.

    “Perpetual License” means a nonexclusive, non-transferable, limited, royalty-free, and fully-paid up license to use the Participant Association Library during the Period of Agreement and after the Period of Agreement terminates.  Those holding a Perpetual License will be entitled to receive the complied courses along with the associated source files and are permitted, as a part of this Perpetual License, to edit, combine alter and create derivative works, for Participant’s internal purposes only, using such source files.  The Participant Association Library shall be used for internal training purposes only and cannot be gifted, given away, resold, sublicensed, or used for other commercial purposes.

    “Steering Committee” means the group of Contributing Participants and System Participants that will help set the development roadmap of courses within the Participant Association Library including which courses to develop or update and the associated priority.

    “Subject Matter Expert” or “SME” means an individual who has expertise and knowledge in a particular area or topic.

     “Participant Association Library” means training services, programs, and content created specifically for the Online Safety Association and also those programs listed in Exhibit A of the PA.

    “Vivid Training” means the training services, programs, and content contained on electronic media that have been created by Vivid or which Vivid has the rights to license to others and that are separate from the Participant Association Library.  Each participant will have the right to use up to ten (10) courses (and annually may change in its sole discretion which the (10) it chooses to use for the next annual period) from the courses listed at
    https://learnatvivid.com/solutions/courses/osha/,
    https://learnatvivid.com/solutions/courses/human-resources-compliance/,
    https://learnatvivid.com/solutions/courses/construction-safety/, and
    https://learnatvivid.com/solutions/courses/environmental-management/.

    “We,” “Us,” “Our,” or “Vivid” means Vivid Learning Systems, Inc., a Washington corporation.

    “You,” “Your,” or “Licensee” means the user of the Vivid Training and Participant Association Library if purchased on an individual basis or the company (or other legal entity) for which you are accepting this Agreement.

  2. Levels of Commitment
    When you sign up to participate in the Online Safety Association, You must select a level of participation.  The Online Safety Association participation requires a minimum three year commitment.  The levels of participation are defined as follows:
    1. Subscription Participant
      Subscription Participants receive a Limited License to the Participant Association Library and the Vivid Training for up to one campus.
    2. Contributing Participant
      Contributing Participants receive a Limited License to the Vivid Training and a Perpetual License to the Participant Association Library for up to one campus.
    3. System Participant
      System Participants receive a Limited License to the Vivid Training and a Perpetual License to the Participant Association Library for all campuses under a central administration.
       
  3. Participation Renewal
    The initial term of this Agreement shall begin on the first date of the Period of Agreement and will continue through the last date of the Period of Agreement.  After the initial term of the Period of Agreement has ended, this Agreement shall automatically renew for successive three (3) year periods, unless either party notifies the other party in writing of its intent to terminate this Agreement delivered at least thirty (30) days prior to the expiration of the then existing term.  The fees during any automatic renewal term will be the same as the fees during the immediately prior term unless We have given You written notice of a pricing increase at least sixty (60) days prior to the expiration of the then existing term, in which case the pricing increase will be effective upon renewal and thereafter.
     
  4. Content Development

    Vivid will use the money collected to help fund the development of courses for the Participant Association Library.  Each Contributing Participant and System Participant will designate one person to serve on the Steering Committee and the Steering Committee meetings will be hosted by Vivid.  The Steering Committee will determine the courses to develop or update for the Participant Association Library and the priority of development will be based on majority voting.  This development roadmap will then be used by Vivid to develop the courses or perform the updates specified.

    Vivid will develop a minimum of four (4) courses each annual period starting on September 1st of each year and ending on August 31st.  For purposes of this minimum development, a course is defined as a twenty (20) minute course with Vivid’s standard level of interactivity (interactions generally include audio and knowledge checks such as multiple choice, matching, drag and drop, etc.) and the actual minimum number of minutes will be adjusted based on actual course run times and levels of interactivity as determined by the Steering Committee and Vivid.  The minimum number of courses is also dependent on the Subject Matter Expert responding by the appropriate deliverable due dates.  If the Subject Matter Expert fails to respond in a timely manner Vivid will work in good faith with the Steering Committee to reschedule the production of the course and if necessary to replace the course on the roadmap with a different course.  Online Safety Association fees may also be used, with the approval of the Steering Committee, to pay for a Subject Matter Expert in the event that the Steering Committee is unable or unwilling to provide a suitable Subject Matter Expert from a Contributing or System Participant.

    As part of the development process the Steering Committee will designate one Subject Matter Expert for each course who will be an employee of a Contributing Participant or a System Participant.  The Subject Matter Expert will work with Vivid’s development personnel by supplying the content material and reviewing the blueprint, storyboard, online course, etc.  The Subject Matter Expert along with any content or other materials supplied during the creation or update of the courses within the Participant Association Library will be supplied free of charge to Vivid.  Vivid will obtain all photos from stock photo sources or from the Subscription, Contributing, and System Participants and no photo shoots are assumed in the pricing below.  Any photos supplied by participants must be high-resolution, production ready photos.  Vivid will be granted a nonexclusive, royalty free, and fully paid-up perpetual license to use the content and other material supplied by the Subject Matter Expert or any Subscription, Contributing, or System Participant, including any derivative works created by Vivid, only for use in the Participant Association Library and the marketing and reselling of the Participant Association Library.  This license does not extend to any courses or other material outside of the Participant Association Library and if Vivid desires to use it in any manner outside of the Participant Association Library then Vivid must obtain the express written consent of the party who contributed the content or other material.

    Course outline and length, level of interactivity, and customer deliverable dates will be documented and agreed upon with the Steering Committee in a written scope document prior to project kickoff.  The scope document along with its terms and conditions will govern the course creation process including the Subject Matter Expert review process, milestone dates, and roles and responsibilities of Vivid and the Steering Committee, but shall not vary any of the substantive terms of this Agreement.  Delivery dates are subject to Subject Matter Expert’s review within agreed upon deliverable timelines. Vivid’s development process consists of review milestones that serve as checkpoints to ensure that the project goals for all courses will be met. These milestones provide opportunities for collaboration between the assigned Subject Matter Expert and Vivid instructional designers and give the Subject Matter Expert the opportunity to provide specific feedback. The Vivid project manager serves as a primary point of contact for the project and ensures that each milestone in this phase is on time.  The Steering Committee will provide a primary point of contact to manage the process with regard to participant and/or Subject Matter Expert timelines, reviews, and deliverables.

    The following Steering Committee milestones will be included in the production for each course:
    Review and Approve Blueprint
    Review and Approve Storyboard
    Review and Approve Online Version
    Approve Final Version

    Courses for the Participant Association Library will be developed in Articulate Storyline.  Vivid will develop an organization neutral content template in Articulate Storyline which will be used for all content development.  Five thousand dollars of fees paid will be utilized for development of the initial template.
     
  5. Ownership of Vivid Training
    Except as specifically set forth in this Agreement, nothing contained in this Agreement shall by express grant, implication, estoppel, or otherwise, create in Licensee any right, title, interest, or license in or to the inventions, patents, trade secrets, technical data, logos, graphics, icons and images, videos, other content, computer software, or software documentation of the Vivid Training.  Vivid or its partners retain exclusive title, copyright, and all intellectual property rights in and to the Vivid Training.  Licensee may not create derivative works, decompile, reverse engineer, disassemble, or modify the Vivid Training.  If You provide any suggestions, feedback, or improvements for the Vivid Training, Vivid will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.
     
  6. Termination
    Either party may terminate this Agreement by giving written notice if a material breach remains uncured thirty (30) days after the breaching party receives written notice.  In the event of a material breach by Vivid, Vivid will provide to Licensee a refund of Licensee’s annual fees paid for the annual period in which the termination occurs, and such refund will be prorated to reflect the percentage of the then-current annual period still remaining as of the effective date of the termination; Vivid will be entitled to deduct from the foregoing refund a prorated share (calculated using the then-current number of Online Safety Association Participants) of Vivid’s reasonable and documented expenses which were actually incurred, as of the effective date of the termination, in performing Vivid’s obligations hereunder. In the event of termination or dissolution of the Online Safety Association in its entirety, Vivid will provide to Licensee a prorated portion (calculated using the then-current number of Online Safety Association Participants) of the aggregate of all fees received from Online Safety Association Participants, less those amounts which are allocable to Vivid’s reasonable and actually incurred, documented expenses (including without limitation expenses of Course Development), incurred as of the effective date of the termination or dissolution of the Association.  In the event of a material breach by the Licensee, Vivid retains all of its rights and remedies at law including the collection of all fees whether due and payable now or through the conclusion of the then-current term (not including any renewals thereof).  Upon termination or expiration of the Agreement, Licensee will promptly, but in no case more than ten (10) business days, delete any copies of the Vivid Training and the Participant Association Library (unless Licensee has a Perpetual License) from its computers, servers, or other storage media and will provide Vivid with a written certification of its compliance with this provision.
     
  7. Payment
    Fees associated with participation shall be set forth in the PA.  Except as otherwise specified herein or in the PA, (i) payment obligations are non-cancelable and fees paid are non-refundable and (ii) quantities purchased cannot be decreased during the relevant Period of Agreement.  Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable PA.  We will invoice You in advance and otherwise in accordance with the PA.  Invoiced charges are due and payable net thirty (30) days from the invoice date.
    1. Late Fees
      If any invoiced amount is not received by Us by the due date then without limiting Our remedies, (a) those charges may accrue late interest of 1.5% per month or the maximum allowable by law, whichever is lower, and/or (b) We may condition future renewals on payment terms shorter than those specified in this section.  Vivid reserves the right to suspend Licensee’s access to the Vivid Training and the Participant Association Library for any accounts for which any payment is due but unpaid but only after Vivid has provided Licensee two (2) late notices and at least thirty (30) days have passed since the transmission of the first notice.  In addition to any unpaid fees, Licensee shall be responsible for Vivid’s reasonable costs of collection, including but not limited to attorney fees.  We may, at our election, choose to forgo the exercise of Our rights under this section to resolve reasonable disputes, without waiving those rights.
    2. Taxes
      Our fees do not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively “Taxes”).  You are responsible for paying all Taxes associated with Your purchases hereunder.  If We have the legal obligation to pay or collect Taxes for which You are responsible, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.  We are solely responsible for taxes assessable against Us based on Our income, property, and employees.
       
  8. Updates to Vivid Training
    At no additional cost to Licensee, Vivid shall provide Vivid Training reasonably maintained to current regulatory standards by providing updates to standard content as regulatory requirements change and by making operating improvements, in each case the timing and necessity of which shall be determined by Vivid in its sole reasonable discretion (“Updates”).  Updates may contain, for example, regulatory changes, additional questions added to the “question bank”, and “lessons learned” information gathered during previous years.  Licensee requested changes to customize Vivid Training will be available for an additional fee to be negotiated and documented in writing by Vivid and Licensee.
     
  9. Training and Support
    During the term or extended term of this Agreement, Vivid shall assist Licensee with the initial setup of the Vivid Training and Participant Association Library via telephone and email support.  Vivid shall provide to Licensee telephone and email support and trouble shooting of the Vivid Training and Participant Association Library for the term or extended term of this Agreement.
     
  10. Limited Warranty; Limitations of Liability

    Vivid and any party involved in creating, producing, servicing, updating, or delivering the Vivid Training and Participant Association Library (collectively the Vivid “Related Parties”) shall not in any case be liable for any type of loss or damage arising from the content of the Vivid Training and/or the Participant Association Library, including links to or from Vivid Training or Participant Association Library and errors and omissions in the content, and Licensee hereby agrees to hold Vivid and the Related Parties harmless from and against any costs, claims, losses and other liabilities incurred by Licensee based on its use or inability to use the Vivid Training and/or Participant Association Library whether or not advised of the possibility of such damages.  We have made every reasonable efforts to present the material accurately given the current information available when the course was created, however, it is not possible or even reasonably practical for all variables posed by on-the-job application of this information to be covered in the Vivid Training and/or Participant Association Library.  Therefore, Licensee acknowledges that it has sole responsibility for ensuring the appropriateness and completeness of the Vivid Training and Participant Association Library as applied to its operational requirements, and to provide adequate training, including safety training, to its staff and others to whom Licensee provides training.  Vivid does not warrant that the Vivid Training or Participant Association Library will be uninterrupted, timely, or error free.  You are solely responsible for evaluating the fitness of the Vivid Training and Participant Association Library for Your particular purpose.  The content provided in the Vivid Training and Participant Association Library is provided as is without any warranties of any kind including warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property.

    The liability of Vivid arising out of any kind of legal claim (including, but not limited to, claims sounding in contract, tort, strict liability, breach of warranty, or otherwise) will not exceed the amount You paid for the most current annual fee noted on Your PA.

  11. Indemnity
    1. Indemnity by Vivid

      Vivid agrees to indemnify and hold harmless Licensee from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees, arising from any third party claims that the Vivid Training (excluding any Licensee assignments) and Participant Association Library infringes or misappropriates any presently existing United States patent, copyright, trademark or trade secret held by such third party, provided You promptly notify Vivid in writing of any such claim, suit, or proceeding and permit Vivid to control the defense or settlement thereof and cooperate in the defense or settlement thereof. This indemnity shall not apply in the event that You or any of your employees or representatives alter the Vivid Training or Participant Association Library and such alteration is a contributing factor in the alleged infringement or misappropriation.

      Vivid will have the option, at its expense, to employ counsel of its choosing to defend against such claim and to compromise, settle, or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon You may be affected without Your prior written consent.  You shall have the option to be represented by counsel at Your own expense.
       
    2. Indemnity by Licensee

      You agree to indemnify and hold harmless Vivid from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees, arising from any breach of this Agreement, Your use or access of the Vivid Training and Participant Association Library (subject to the terms herein) or Your use or access of any Internet sited linked to or from these courses.  You also agree to indemnify and hold harmless Vivid from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees, arising from any third party claims that any Licensee Assignment infringes or misappropriates any presently existing United States patent, copyright, trademark or trade secret held by such third party provided Vivid promptly notifies You in writing of any such claim, suit, or proceeding, permits You to control the defense or settlement thereof, and cooperate in the defense or settlement thereof.

      You will have the option, at Your expense, to employ counsel of Your choosing to defend against such claim and to compromise, settle, or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon Vivid may be affected without Our prior written consent.  Vivid shall have the option to be represented by counsel at Our own expense.
       
  12. Assignment
    This Agreement may not be assigned or otherwise transferred by either party in whole or in part, by operation of law or otherwise, without the express prior written consent of the other party hereto, which consent will not unreasonably be withheld.  This consent requirement shall not apply in the event either party shall change its name or merge with another entity.  This Agreement shall benefit and be binding upon the successors and assigns of the parties hereto.
     
  13. Publicity
    If You enter into this Agreement, You agree that Vivid may disclose to the public that You are a paying user of the Vivid Training and Participant Association Library.  You further agree that Vivid may reference You (and with your prior written permission Your logo and trademarks) on the customer section of Vivid’s website and in other marketing materials and presentations until such time as Your membership in the Online Safety Association is discontinued.
     
  14. Severability
    If any part, term, or provision of the Agreement shall be held void, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining provisions shall not be affected thereby.
     
  15. Choice of Law; Venue
    This Agreement shall be governed by and construed in accordance with the laws of the State of Washington without regard to its conflicts of laws principles and any action brought to enforce any provision or obligation hereunder shall be brought in a court of competent jurisdiction in or serving King County, Washington, and You hereby submit to such personal jurisdiction. The substantially prevailing party in any such proceeding shall be entitled to receive from the other party all reasonable attorneys' fees incurred by such prevailing party and all costs reasonably incurred in connection therewith.
     
  16. Notification of Changes
    Vivid reserves the right to update the terms and conditions in this Agreement without notice and Licensee agrees it is responsible for periodically reviewing such terms and conditions to ensure its ongoing compliance therewith.  Vivid will update the “last updated date” at the top of this Agreement.  If the changes have a material adverse impact on and are not acceptable to You, then You must notify Vivid within thirty (30) days of the applicable “last updated date.”  If Vivid cannot accommodate Your objection, then the prior terms and conditions shall govern You until the expiration of Your then current Period of Agreement.  Any subsequent renewed Period of Agreement will be governed by Vivid’s then current terms and conditions contained herein.  No term or condition contained in Your purchase order or similar document will apply unless specifically agreed to by Vivid in writing, even if Vivid has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Vivid.
     
  17. Force Majeure
    Neither party shall be in default by reason of any failure in the performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, third-party computer or telecommunications equipment or software failures, default by subcontractors or suppliers, acts of God or of the public enemy, domestic or foreign governmental acts, labor, fire, flood, epidemic, and/or strikes.
     
  18. Independent Contractors
    The parties are and will remain independent contractors.  Neither party has any authority to act on behalf of the other party or to bind it and in no event will the parties be construed to be partners, employer-employee, or agents of each other.
     
  19. Entire Agreement
    This Agreement, with any associated PA, constitutes the entire agreement between Vivid and Licensee with respect to the Online Safety Association and Your associated use of the Vivid Training and Participant Association Library and the parties acknowledge that they have not relied on any representations outside of this Agreement in deciding to enter into this Agreement.  If for any reason a court of competent jurisdiction finds any provision of this Agreement or any portion thereof to be unenforceable that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement and the remainder of this Agreement shall continue in full force and effect.  The failure or delay of either party to strictly enforce any of the terms and conditions in this Agreement shall not be construed as a waiver of any right to enforce any prior, concurrent, or subsequent defaults.
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