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HomeMy WebLinkAboutC11-227 Essential Learning Membership AgreementESSENTIAL LEARNING MEMBERSHIP AGREEMENT Tres MEMBERStIIP AGREEMENT ( "Agreement ") is entered into by Essential Learning, LLC, with a mailing address of 10755 -F Scripps Poway Pkwy., #587, San Diego, CA 92131 ( "EL "), and Member, having the name and address listed with the signature below ( "Member ") and the effective date specified in Exhibit B. 1. Definitions. 1.1 "Content" means information contained in courses, tests, assessments and other information provided to Registered Users through the Training Center for their training and development and competency assessment. 1.2 "EL Connect" means the website provided by EL where Member's Liaison and other Member supervisory employees may access Training Center documentation, EL blogs, a calendar of web -based trainings provided by EL and may participate in user forums. 1.3 `°Independent Contractor" means a person who is providing services for Member within member's organization. A person who is not providing services within Member's organization, for example a person who is employed by an outside organization that contacts with Member, may not be considered an Independent Contractor under the terms of this Agreement unless specified in Exhibit B. 1.4 "Liaison" means an employee of Member who is designated by member to interact with EL staff on all matters related to the set -up and ongoing operation of Member's Training Site. 1.5 "Library" means online courses provided by EL under the License Fee for use by Member in the Training Center. The Library(s) selected by Member for license under this Agreement are listed in Exhibit A. [for custom libraries insert this sentence - and the courses contained in the selected Library (s) are attached as Exhibit D.] 1.6 "Member Courses" means online courses developed from Content provided by Member. 1.7 "Premium Library" means online courses that are available to Member for an additional per student fee. Premium Library Content is not included in the Licensing Fee. 1.8 "Reports" mean reports issued to Member through the Training Center to assist Member in tracking and managing the training and development of its staff. 1.9 "Registered User" means an employee or Independent Contractor of Member who is registered to use the Training Center in any capacity including as a Learner, Supervisor, Instructor or Administrator. 1.10 "Restricted User "means a Registered User that is granted access to the Training Center, but has limited or no access to EL Content. The limited access for Restricted Users is defined in Exhibit B. 1.11 "Training Center" means EL's online learning system consisting of learner and administrative functionality, and associated software and websites, including EL Connect, Reports, EL Content, guides and system documentation. 1.12 "Training Center Administrator" means a Registered User who has been authorized by Member or Member's Liaison to have access to all administrative functionality within the Training Center. 1.13 "Services" mean the Training Center, Content, and Member data generated by use of the Training Center. 2. Services. EL shall provide Member with Services which are described in detail in Exhibit A. 3. Member Responsibilities. 3.1 Registration. Member shall promptly provide EL with the required demographic data for all Registered Users in the specified electronic format provided by EL to complete the initial EL registration process. Periodic additions of Registered Users may be done manually or using the specified electronic format to bulk upload Registered Users into the Training Center. Only Member's current employees and Independent Contractors are eligible to be Registered Users. The number of Registered Users specified in Exhibit B is the average number of Users that Member anticipates will be using the system and is the number of users upon which the Licensing Fee is based. Member agrees not to allow a higher number of Registered Users to access the system without contacting EL to amend the Exhibit B. Member agrees not to activate and deactivate students repeatedly as a method of keeping the average number of users within range of the Registered User number stated in Exhibit B. EL will routinely monitor the system for patterns of activation/deactivation that are outside the range of what would be expected with normal use. Page 1 3.2 Liaison. Member shall designate to EL a primary contact who shall function as the Liaison to EL and who shall be trained by EL so that the Liaison shall be able to train and support Registered Users on the use of the Training Center. The Liaison shall interface with EL on all issues related to the Services. Member will promptly appoint a new Liaison if the employee who was functioning in that role leaves Member's organization. 3.3 Problems or Defects. Member shall immediately notify EL, using EL's Member Support system, of any problems or defects in the Services and EL shall use good faith efforts to correct any such problems or defects. 3.4 Improper Use. Member shall immediately notify EL of any unauthorized use of a Registered User account for the Services, or any breach of security. Member is responsible for (a) maintaining the confidentiality and security of the Registered User accounts, and any passwords, and (b) all activities that occur under a Registered User account and password 3.5 Payment. Member shall pay EL in accordance with Exhibit B attached hereto. 3.6 Cooperation. Member shall cooperate with EL to facilitate the provision of Services by EL. 4. Member's Use of Services. 4.1 EL Grant of License to Member. Subject to the terms and conditions of this Agreement, EL grants to Member a limited, nontransferable, nonexclusive license to access and utilize the Services provided by EL through the Training Center. 4.2 Restrictions. Member and Registered Users, shall not (i) allow use of the Services by third parties without EL'S prior written consent which will be documented in Exhibit B. Third parties include any outside organizations that are affiliated with or contracted by Member but not listed in Exhibit B, contractors not providing services within member's organization or persons not directly employed by Member; or (ii) use the Services in any way inconsistent with the terms of this Agreement. 4.3 License Limitations. Member shall select and be responsible for the Content provided to Registered Users. Member's Liaison will be designated as the Training Center Administrator. The Liaison may authorize additional Registered Users to have Training Center Administrator privileges. Member will own or obtain all proprietary rights necessary, including copyrights, patents, and trade secrets, in and to any Content it develops or uploads for use in the Training Center or provides to EL for purposes of building Member Courses. EL has no responsibility for any medical treatment decisions or other matters of patient or client care by Member or any of its' Registered Users, employees or agents based upon use of Content. The Services should not be considered by Member or Registered Users as medical advice or opinions, as a medical diagnosis, or as a suggested course of treatment by EL. Member acknowledges and agrees that EL is not engaged in the practice of medicine through Content. EL further disclaims responsibility for any business or patient care decisions made from the use of the Services provided hereunder. 4.4 DisCLAIMER. The Services are provided "as is" and without warranties of any kind either express or implied, including without limitation the warranties of merchantability, fitness for a particular purpose, title and noninfiingement. EL is not responsible for the accuracy, reliability or timeliness of, or for Member's and/or Registered Users reliance on Content, Reports, opinions, advice or information appearing in the Services. EL does not endorse, operate, control or assume responsibility for any product, brand, method, treatment, information or service of any third party referenced in Content, in any way. 5. Ownership. 5.1 Title. Member agrees that, except as set forth in 43 relating to Member Courses, EL owns and/or licenses all copyright, trade secret, patent, trademark and other proprietary rights in and to the Services, including all modifications thereto. 5.2 Restrictions. Member agrees that Member and Registered Users shall not, directly or indirectly, (i) sell, lease, distribute, assign, sublicense or otherwise transfer, (ii) duplicate, reproduce or copy, (iii) disclose, divulge or Page 2 otherwise make available to any third party, as defined in 4.2, (iv) use except as authorized by this Agreement, or (v) decompile, disassemble or otherwise analyze or reverse engineer any software and/or database design underlying the functionality of the Training Center and Services. Member shall not reproduce or copy any documentation, Content, text, data, graphics, images, audio or video clips, interfaces or other materials or works of authorship in or on the Services except for Content provided by member and Member Courses. 5.3 Links. The Services may include links to third party Internet sites or other resources provided by third parties. Because EL has no control over such sites and resources, Member acknowledges and agrees that EL is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Member further acknowledges and agrees that EL shall not be responsible or liable, directly or indirectly, from any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party site or resource. 5.4 Legal Notices. Member and Registered Users shall not delete any author attributions, legal notices or proprietary designations or labels provided through the Training Center. 6. Limitation of Liability. EL shall make every effort to insure the accuracy and reliability of the Services and Content. EL shall have no liability to Member or Registered Users, whatsoever for any damage, expense or loss of any kind, under any theory of liability or indemnity, arising out of or in connection with this Agreement, the Training Center, Services or any decision made or action or non - action taken by Member or any Registered User in reliance upon this Agreement, the Services, service interruptions, delays or errors, unavailability or inaccuracy of any Content, Reports or other information. In no event shall EL be liable to Member or Registered Users for any consequential, indirect, exemplary, special or incidental damages, arising from or relating to this Agreement, even if EL or any agent of EL has been advised of the possibility of such damages. 7. Term and Termination. 7.1 Term. The term of this Agreement and the license granted hereunder shall remain in effect for a period of one (1) year from the Effective Date, unless terminated by either party pursuant to Section 7.1 or 7.2. Thereafter, the Agreement shall automatically renew for additional one (1) year terms, unless terminated by either party by providing the other party with at least sixty (60) days written notice prior to the expiration of the then current term. 7.2 Good Faith Termination Without Cause. Notwithstanding anything herein to the contrary, either party may in good faith terminate this Agreement at any time without cause upon at (60) days prior written notice to the other party. Upon any such termination by either party, Member shall be entitled to a refund of the fees paid to EL by Member, prorated for the number of months remaining in the original term of the Agreement. 7.3 Termination for Cause. In the event of a material default of any obligation under this Agreement which remains uncured by a party forty-five (45) days after receipt of written or electronic notice of such default, the non - defaulting party may terminate this Agreement, provided however, EL shall have the right to terminate this Agreement without prior notice to Member in the event of non - payment of fees, use of the Services by anyone who is not an employee or Independent Contractor of Member or a permitted third party listed in Exhibit B, or if Member repeatedly activates and deactivates Registered Users as a way to mask the true average number of Registered Users who are licensed by Member pursuant to Exhibit B. EL will routinely monitot the system for patterns of activation/deactivation that are outside the range of what would be expected with normal use. If an abnormal pattern is detected EL will contact Member to provide the opportunity to amend Exhibit B to increase the number of Registered Users. Page 3 9.5 Notices. EL may deliver notice to Member under this Agreement by means of electronic mail to the e- mail address provided to EL in registration or by a general notice on the EL website. In any other process, all notices and other communications required under this Agreement shall be in writing and shall be deemed to have been received when personally delivered or when deposited in the United States mail, sent registered mail by first class, postage prepaid, addressed as set forth at the end of this Agreement. 9.6 Independent Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between EL and Member. 9.7 Jurisdiction and Venue: This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. Signatures Follow: Page 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above. ESSENTIAL LEARNING, LLC 10755 F SCRIPPS POWAY PKWY., #587 SAN DIEGO, CA 92131 Signature Sue Erskine Name Title MEMBER: Eagle County Sheriffs Office 0885 Chambers Ave PO Box 359 Eagle, CO. 81631 ignature Printed Name �Uid1i Title E -mail Address Telephone Date: Page 6 EXHIBIT A Services Description Hosting - EL hosts the Training Center and Member's database. The Training Center— The Training Center allows Members to automate the management of training requirements and to provide online courses to Registered Users. The Training System Administrator may provide Registered Users with access to system functionality based on assigned permission levels including: • Learner — may access online courses, register for live courses, view, save and print a course transcript, view and access assigned curricula and career paths. • Supervisor — may be granted up to three levels of system access within the assigned level of the Member's organizational hierarchy: 1) Enrollment, 2) User Management, and 3) Reporting.. • Instructor — may be assigned system functionality related to a designated course(s). Implementation Services — Member's Liaison will work with an EL Implementation Project Manager on basic Training Center set -up, uploading employees, creating requirements and launching the Training Center to the organization. At the outset of implementation, EL will build the Training Center, customized with Member's logo, accessible through a designated URL. EL's Project Manager will assist Member in completing initial employee demographics, developing an organizational hierarchy and assigning levels of permission for accessing the system. Data must be provided in the specified electronic format. With EL assistance, Member will develop a plan to introduce, orient and train staff on the Training Center. EL will conduct a train the trainer session for all management/administrators and furnish a variety of training materials to use to train end users. Finally, EL will help Member review its existing staff education program, identify current training needs, current tracking and other requirements and then begin to set -up organization - specific training curricula. Throughout the implementation process, Member will have access to EL Connect, detailed reference manuals, videos, guides and a support link in the site for ongoing questions, training needs and general site support. Reporting - The Training Center provides for tracking and documentation of online, live and off -site training provided to Registered Users. The Training Center reports allow Registered Users,. who are granted reporting permission by Liaison, to view Registered User data related to course completions, compliance with and completion of assigned curricula, surveys and tests and user demographics. Reports may be filtered by hierarchy level and other user defined fields. EL Content. The System includes EL courses that are included in the Services. Member will have loaded into their Training Center the Open Corrections Library. Member will have access to all of the current courses in the Open Corrections Library loaded into their Training Center. Member has been provided a current listing of courses in the Open Corrections Library. EL Content services include access to all of the current and future online courses added to the Open Corrections Library. Additional Courses in and additional libraries that EL offers is at additional cost The Training Center Administrator will be responsible for selecting which courses will be available to Registered Users and Restricted Users that have access to view courses per the terms of this Agreement. When individual courses are purchased, as identified in Exhibit B, replacement courses may only be selected Page 7 annually on the anniversary date of the agreement. EL continuously reviews and updates courses based on an ongoing needs analysis. From time to time courses may be changed or retired. EL will notify Member of all changes that effect Member's library (s) listed in Exhibit B. Member may request EL to alter information contained within an EL course section or to provide additional information to an EL course section for an additional customization fee. Customization of EL courses or reformatting of EL courses will be provided at the then current EL educational technology rates. EL Courses that have been customized in this manner may no longer be eligible for EL continuing education accreditation. New courses are added to the EL Course Libraries, not including Custom Libraries, on a regular basis and will be added to Member's Training Center. Member will only be entitled to EL courses that are included in the EL Course Libraries specified in Exhibit B. EL's Open Library does not include EL Premium Library Courses. Member may amend this Agreement to include EL Premium Library Courses or to add additional EL Course Libraries for an additional Licensing Fee. Course Development — At no additional charge, you can develop and add an unlimited number of your own courses using our integrated Course Assembler. You can add assessments and surveys to go along with your courses using Essential Learning's system tools. You can also customize EL courses by uploading policies, other reference materials or web links to enhance and customize the courses. Custom course development from your content is available at an additional charge. A price list is available from Essential Learning's Customer Support Department. For any course development services provided by EL, Member will need to supply edited, final version content in an acceptable electronic version ( WORD, PDF, PowerPoint, MS Publisher or most commercial authoring tools etc). Member also needs to include content for interactive features (i.e. pop -up quizzes, case studies, etc.), test questions and course objectives in edited, final version." Files uploaded for use in the Course Assembler may not exceed 150 MB in size without additional fees based on file size. Course Size Under 500 users F$50 Between 500 users and 1000 users Over 1000 users 150MB 0 per month per course/ CAP $10.00 per month per course/ Individual quote based - per month at 10 courses/ CAP $75 per month at 10 on usage 250MB Over 10 courses Individual quote courses/ Over 10 courses based on usage. Individual quote based on usage. Over 250 MB $10.00 per month per course/ $12.00 per month per course/ Individual quote based CAP $75 per month at 10 courses CAP $100 per month at 10 on usage courses Member Support — Member's Liaison may request assistance from EL's Member Support department via a link within the Training Center and via the Member Support toll -free telephone number, available Monday through Friday from 8:00 a.m. to 8:00 p.m. eastern time. Support requests that are submitted via the Training Center on the weekends and holidays will be reviewed and responded to on an emergency basis. Essential Learning's Member Support department will be closed on eight major holidays: New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving (Thursday and Friday), Christmas Eve and Christmas Day. Member support requests on these Holidays will be responded to on the next business day. Member's Liaison will be responsible for first line support to Registered Users and training Registered Users on the use of the Training Center. EL provides comprehensive Training Center information for Registered Users including instructional videos, Page 8 printable guides and a user manual. Information may be accessed via EL Connect. EL's Member Relations department provides free monthly webinar training on varying topics including, but not limited to: creating courses, tests and surveys in Essential Learning; creating competencies; scheduling classroom classes; understanding the management reports; and entering outside training events into Essential Learning. Liaisons are notified of the training schedule for each month via email and on the training calendar available in EL Connect. Registration for each webinar is limited to 1,000 individuals and each individual must have an Internet connection and a telephone line. Members are strongly encouraged to take advantage of these trainings to get the maximum benefit from the Training Center. EL Connect provides Members with a source for EL provided training materials and resources and access to forums to share experiences and solicit advice and information from other organizations that contract with EL for a Training Center. Member is solely responsible for any information provided or acquired from EL Connect user forums. Page 9 EXHIBIT B License Fee and Payment Terms Name of Organization: Eagle County Sheriffs Office Effective Date August 1", 2011 Business Development Representative: Tully Type: CO -DET Term: One Year Number Price Per Price Per of Registered User Per User Per Services Library of EL Courses Courses Users Month Year Training Center Open Corrections Library 20 $15.00 $180.00 One time implementation fee: (reflected in "Payment due at Signing " - Waived Summer 2011 incentive) $00.00 Payment terms: Due on the first of the month Please select Monthly uarterl , or Annual Payment Option: Discount included in price 5% Discount provided as Member of: incentive Member agrees not to exceed the average number of Registered Users stated above through a process of deactivating and reactivating Registered Users. If a significant increase (5% or greater) occurs in the average number of Registered Users, Member will be invoiced for additional users at the then current license fee. If a significant decrease occurs in the average number of registered Users, Member may request a reduction in the number of users and a credit for the excess Licensing Fee. Please send the total payment due at signing (see above) to: Essential Learning, 10755 -F Scripps -Poway Pkwy., #587, San Diego, CA 92131 Page 10 Re ular Per User Per Payment Payment due at Payment Frequency Total Quantity month Due Si nin Monthly Payment 20 users $15.00 $300.00 $300.00 Quarterly Payment, Discounted 2% 20 users $14.70 $882.00 $882.00 Annual Payment, Discounted 3% 20 users $14.56 $3492.00 $3492.00 Please select Monthly uarterl , or Annual Payment Option: Discount included in price 5% Discount provided as Member of: incentive Member agrees not to exceed the average number of Registered Users stated above through a process of deactivating and reactivating Registered Users. If a significant increase (5% or greater) occurs in the average number of Registered Users, Member will be invoiced for additional users at the then current license fee. If a significant decrease occurs in the average number of registered Users, Member may request a reduction in the number of users and a credit for the excess Licensing Fee. Please send the total payment due at signing (see above) to: Essential Learning, 10755 -F Scripps -Poway Pkwy., #587, San Diego, CA 92131 Page 10 Member Data Member Liaison: Position of Liaison Phone for Liaison Contact: E -mail for Liaison Contact: Executive Contact: Position of Executive Contact: Phone for Executive Contact: E -Mail for Executive Contact: Member website URL Billing Contact: Billing Phone Number: E -mail Address for Invoice: Please Note: Essential Learning provides ongoing communication about new courses, training seminars and opportunities for participation in professional social networking venues. We strongly encourage our new Members to identify additional employees in your organization below that would benefit from this type of commun ication (suggestions include supervisors, etc.). Feel free to add additional names on a separate page. Additional Contact 1: E -mail for Additional Contact 1: Additional Contact 2: E -mail for Additional Contact 2 Additional Contact 3: E -mail for Additional Contact 3: Additional Contact 4: E -mail for Additional Contact 4: Please check here to authorize EL to email Registered Users to provide information about new continuing education courses that are available. Page 11