TERMS AND CONDITIONS

THIS AGREEMENT is made effective when you agree to the Terms and Conditions by and between DSI WORK SOLUTIONS, INC., (“DSI”), and the “Account Holder”.

Upon purchase, the Licensee becomes a Licensed User of the DSI copyrighted Job Function Matching® System, consisting of proprietary training video and electronic materials, in all available versions (the “Coursework”) for the purchase made; and

WHEREAS, DSI has developed and is the owner of a software application for electronic access and use of the Programs (the “Software”); and

WHEREAS, the Licensee desires to subscribe for access to use the Software in connection with the Programs and to obtain certain other rights as set forth in this Agreement, and DSI is willing to make the Coursework and Software available to Licensee, through subscription and through the grant of a non-exclusive Software license, in accordance with the terms and subject to the conditions set forth below;

NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, and for other good and valuable consideration, DSI and Licensee hereby agree as follows:

1. Software Subscription

Subject to the terms and conditions of this Agreement, DSI hereby grants to Licensee and Licensee hereby accepts from DSI a non-exclusive, nontransferable software subscription to access and use the Software in accordance with this Agreement.

2. Use of Software.

Licensee agrees to use the Software for the Licensee’s own personal use and shall not have the right to sell, distribute, sublicense, transfer or lease the Software to any third party or to allow any third party to use or have access to any portion of the Software. Third parties, for this purpose, include any employer, parent company, subsidiary company, affiliated company, or any other person or entity other than Licensee. Licensee shall not remove from any version of the Software the copyright, trademark, service mark or other proprietary notices of DSI as such notices appear in the original work. Licensee shall have no right to copy any portion of the Software for any purpose. Licensee shall not attempt to modify or prepare derivative versions or works from any portion of the Software and shall not transmit any portion of the Software in a manner which would permit unauthorized disclosure or use. Any unauthorized copying or transmission of the Software will constitute a copyright infringement for which DSI may be entitled to recover statutory damages, attorneys’ fees and injunctive relief, as well as actual damages. Licensee shall not use the Software in any manner which is in violation of applicable laws or regulations.

5. Training and Support.

The subscription granted to Licensee under this Agreement includes initial training by DSI in use of the Software and ongoing basic support. Any custom or additional training, support, assistance or other services, if requested by Licensee, may be provided by DSI only upon payment of additional amounts as agreed upon in writing by DSI and Licensee.

6. Term and Termination.

The Software license shall become effective as of the date of purchase and shall continue in effect thereafter so long as Licensee pays the required subscription fees. Licensee shall have the right to terminate this Agreement and the subscription and Software license granted hereunder at any time upon giving thirty (30) days prior written notice to DSI. DSI shall have the right to terminate this Agreement and the subscription and license granted to Licensee hereunder thirty (30) days after DSI gives Licensee notice of Licensee material breach of any provision of this Agreement unless Licensee cures the breach within such 30-day period.

7. Proprietary Rights.

Account Holder acknowledges that ownership and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights in the Software (including any updates, modifications or supplements issued by DSI) are and shall remain solely in DSI. Under this Agreement, Licensee acquires only the right to access and use the Software, subject to the limitations and restrictions set forth herein and does not acquire any ownership rights or title to the Software.

8. Modifications and Updates.

DSI may make modifications, improvements, enhancements, upgrades and other changes to the Coursework and Software from time to time, with or without advance notice to Licensee. DSI shall have no obligation, however, to update or modify the Software or to release or make available any new products, updates, releases, or versions of the Software.

9. Warranty Disclaimer.

The Software is licensed by DSI “as is” and without warranty as to the performance or results that Licensee may obtain by using the Software in connection with the Programs or otherwise. The entire risk as to the results and performance of the Software is assumed by Licensee. DSI does not warrant that the Software will conform to Licensee’s requirements, that the Software will operate in combination with other software, hardware, systems or data, or that operation of the Software will be uninterrupted, error-free, virus free or secure or that any errors will be corrected by DSI. DSI EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

10. Limitation of Liability.

In no event shall DSI be liable to Licensee for any indirect, consequential, special, or incidental damages (including, without limitation, lost profits, lost revenues or business interruption), resulting from Licensee’s use or inability to use the Software, even if DSI has been notified of the possibility of such damages. Under no circumstances shall the aggregate and cumulative liability of DSI to Licensee for damages under this Agreement exceed the amount of Software Fees paid by Licensee to DSI.

11. Third Party Infringement Claims.

If any third party makes a claim against Licensee that the Software infringes any patent, copyright, trademark, service mark, or misappropriates any trade secret, DSI shall indemnify and defend Licensee against such claim (including reasonable attorneys’ fees and costs), provided that Licensee promptly notifies DSI in writing of such claim and allows DSI to assume sole control of the defense of such claim and all related settlement negotiations. The foregoing constitutes the sole and exclusive liability and obligation of DSI to Licensee, and is Licensee’s sole remedy, with respect to any infringement or alleged infringement of any third-party intellectual property rights. Notwithstanding the foregoing, DSI shall have no liability for any claim of infringement or misappropriation based on use by Licensee of any unauthorized modification of the Software or use by Licensee of the Software other than in accordance with the requirements of this Agreement and Schedule A. Licensee shall indemnify and defend DSI and DSI’s licensors against any third-party claim (including reasonable attorneys’ fees and costs) arising out of any unauthorized use of the Software by Licensee, provided that DSI promptly notifies Licensee in writing of such claim and allows Licensee to assume sole control of the defense and any settlement of such claim.

13. Licensee’s Responsibilities in Use of Software.

Licensee shall be responsible for using the Software in a manner which complies with all requirements for use, review and reference to the Programs under Licensee’s agreement with DSI for license of the Programs. Licensee shall be solely responsible for compliance with applicable practice requirements and professional guidelines with respect to Licensee and any employees of Licensee and solely responsible for compliance with all requirements of human rights and discrimination laws. Licensee shall be solely responsible for meeting all requirements with respect to informed consent forms and procedures, informed refusal forms and procedures, and for maintaining policies and procedures that assure worker or patient safety during evaluations, treatments, and other interventions. The safety of any worker, patient or client being evaluated in protocols described in the Software or the Programs shall be solely that of Licensee and not of DSI.

14. Assignment.

Licensee shall not assign its rights or interests in this Agreement to any other party nor transfer as part of a sale of Licensee’s assets or business, or pursuant to any merger, exchange, reorganization, or other change in control of Licensee.

15. Construction.

This Agreement shall be governed by and construed in accordance with the laws of the State of Kentucky, without giving effect to choice of law principles thereof. No amendment or modification to this Agreement shall be effective unless in writing signed by both DSI and Licensee.

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