This Training Program Commercial License Agreement (“License”) is entered into by and between you (or “Licensee”) and Cybervance, Inc. (“Cybervance“) in connection with your access to and use of Cybervance’s proprietary training course and system (the “Program”), including without limitation all associated curricula, manuals, materials, reports and assessment tools, and resources for in-classroom and/or online instruction, as applicable for any given course. The Program also includes any updates, upgrades, add-on components, or supplements to the original Program that Cybervance may provide to you or make available to you after the date that you obtain your initial copy and/or access to the Program, to the extent that such items are not accompanied by a separate license agreement or terms of use.  By using the Program, you agree to be bound by the terms of this License.  If you do not agree to all of the terms of this License, do not use or retain the Program.

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1. License and Restrictions

Subject to the terms and conditions of this License, Cybervance grants to Licensee a limited, revocable, non-exclusive, non-transferable license to use the Program in whole or in part.  Licensee shall not, and shall not permit any third party to, use or copy the Program except as expressly permitted in this License or otherwise in writing by Cybervance.  By licensing the Program, you agree to use the Program for your personal or business use and further agree not to re-sell, give away or otherwise make the Program available to others.  Any purported re-sale, re-publication, distribution, assignment, loan, transfer or sub-license of the Program without the express written consent of Cybervance is prohibited and void, and shall automatically terminate the license granted under this License.  You shall not represent that you own or have any proprietary interest in the Program take or permit any action that would permit you or any third party any right, interest or ownership of any copy or form of a Program or documentation, any translation, compilation, modification or derivative work thereof or any portion of any of the foregoing.  You agree not to modify, copy, or adapt the Program or to create derivative works therefrom, nor file, store or incorporate the Program into any data or information system, nor permit any person to do any of the foregoing.  Cybervance prohibits the use of the Program for commercial or for-profit training except as specifically authorized in writing by Cybervance.  Licensee shall not remove or alter any of Cybervance’s or its licensors’ restrictive or ownership legends appearing on or in the Program and shall reproduce such legends on all copies permitted to be made. All rights not expressly granted herein are retained by Cybervance (and its licensors); no license is granted by implication or estoppel.

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2. Ownership

Licensee expressly acknowledges and agrees that Cybervance and its third party licensors retain full and exclusive right, title and interest in and to the copyrights and all other intellectual property rights in the Program, except where expressly noted.  Cybervance’s rights are protected by federal and state copyright, trade secret and intellectual property laws and international treaties.  Licensee has no ownership rights in the Program.  Except as otherwise expressly stated and mutually agreed, the nature of all transactions between you and Cybervance is that of a Program use license, notwithstanding the use of “purchase,” “sale,” “buy” and similar terms on the Cybervance website, e-mails, marketing, proposals, or other materials.  Any other use of the Program by any person or entity is strictly prohibited and a violation of this License.

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3. Termination

Cybervance may, at its option, terminate this License in its entirety, either in the event of material breach by Licensee or if Cybervance has a good faith reason to believe that Licensee is about to materially breach this License that (i) is not cured within ten (10) days after notice thereof if such material breach is curable, or (ii) immediately upon notice thereof if such material breach is not curable.  Upon such termination, all rights hereunder shall cease, except that (a) all obligations that accrued prior to the termination date and any remedies for breach of this License shall survive any such termination, and (b) you shall cease using the Program and promptly return it to Cybervance.

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4. Disclaimer of Warranties and Limitation of Liability

THE PROGRAM IS PROVIDED BY CYBERVANCE ON AN “AS IS” AND “AS AVAILABLE” BASIS.  CYBERVANCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU USE PROGRAM AT YOUR SOLE RISK.

CYBERVANCE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE PROGRAM WILL BE FREE FROM INTERRUPTIONS OR OTHER FAILURES, BE ERROR-FREE, OR THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS IN ANY MANNER.  TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, CYBERVANCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), IN NO EVENT WILL CYBERVANCE BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OR DAMAGES OF ANY CHARACTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS AND LOSS, DAMAGE, BUSINESS INTERRUPTION, DESTRUCTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PROGRAM OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES EVEN IF CYBERVANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY CASE, CYBERVANCE’S ENTIRE AND CUMULATIVE LIABILITY THIS LICENSE SHALL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY RECEIVED BY CYBERVANCE FROM LICENSEE FOR THE PROGRAM WHICH ARE THE SUBJECT OF THE CLAIM. Without limiting any of the foregoing, in no event will Cybervance be liable for any delay or failure to perform which is due to acts, failures to act, or causes beyond its reasonable control.

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5. Indemnification

You agree to indemnify, defend and hold harmless Cybervance (including its respective directors, officers, employees, shareholders, partners and agents) (collectively “the indemnified”) from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable attorney’s fees and expenses) incurred by any of the indemnified as a result of or in connection with any breach or alleged breach by Licensee or anyone acting on your behalf of any of the terms of this License.

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6. Governing Law and Venue

This License will be governed by and interpreted under the laws of the state of Maryland, without regard to its choice of law provisions. Venue for any litigation arising hereunder shall be the courts in and for Montgomery County, Maryland, or the U.S. District Court for the District of Maryland, and the parties irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts.  By mutual agreement, Licensee and Cybervance may submit any dispute to arbitration or mediation; each party shall bear its own costs of any arbitration or mediation and shall share costs equally.  Licensee acknowledges that breach may cause irreparable harm to Cybervance for which money damages would be inadequate, and Cybervance shall be entitled to obtain timely injunctive relief, in addition to any and all remedies available at law.

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7. U.S. Government Contracting

The Program constitutes “technical data,” “commercial computer software,” and “commercial computer software documentation” as these terms are defined in Federal Acquisition Regulation (“FAR”) 2.101.

If the Program is licensed by (or if you are authorized by Cybervance to license on behalf of) (i) a civilian agency, the U.S. Government licenses such items subject to this commercial License as specified in FAR 12.212 (Computer Software) and 12.211 (Technical Data), as applicable, and any successor regulations; or (ii) an agency within the Department of Defense (“DOD”), the U.S. Government licenses the such items subject to this commercial License as specified in DOD FAR Supplement (“DFARS”) 252.227-7015 (Technical Data–Commercial Items) and 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation), as applicable, and any successor regulations. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this License.

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In addition, the following shall apply to any U.S. Government end user:

The Government agrees to the provisions of this License, to the extent that the provisions of the License are consistent with applicable federal procurement law(s) and regulations. In the event that any of the provisions of this License are determined to be inconsistent with applicable federal procurement law(s) or regulations, the parties agree that said provision(s) shall be null and void. In the event that any of said provision(s) are rendered null and void, as described hereinabove, the remaining provision(s) of this License shall remain in full force and effect.

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8. General Provisions

This License contains the entire understanding of the parties relating to its subject matter and supersedes any prior written or oral agreement or understandings between the parties with respect to its subject matter. This License has the same force and effect as a signed agreement and may be amended only by a writing signed by both parties. The provisions of this License are to be interpreted in a reasonable manner to effect the purpose of the parties, and this License is not to be interpreted or construed against Cybervance because it participated in the drafting of this License. If any provision of this License is deemed invalid or unenforceable, the other provisions herein shall remain in full force and effect and shall be construed in order to effectuate the purpose and intent of this License. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by an authorized representative of Cybervance. Cybervance may assign or transfer this License, in whole or in part, to any party without notice. All terms and conditions of this License which by their nature are meant to survive the termination of this License will survive termination.

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9. Notices and Communications

Any notices, correspondence or other communications under this License shall be submit through Cybervance’s website: http://cybervance.com/contact-us/.  If you have any questions concerning any part of the License or if you would like to contact Cybervance for any other reason, please call 301-476-1100 or contact us via the address provided above.