NOTICE TO END USER: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. USE OF THE SOFTWARE PROVIDED WITH THIS AGREEMENT CONSTITUTES LICENSEE’S ACCEPTANCE OF THESE TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DISCONTINUE INSTALLATION IMMEDIATELY. PROMPTLY RETURN THE SOFTWARE AND THE ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS AND MEDIA) TO THE LOCATION WHERE LICENSEE OBTAINED THEM.
(1) Software. The term “Software” includes all Education Innovations, Inc. (“Education Innovations”) and third party (“Supplier”) software provided with this license, and includes any accompanying documentation (the “Documentation”). The term “Software” also includes any updates of the Software provided to Licensee by Education Innovations at its option. Subject to the terms of this Agreement, Education Innovations grants to Licensee, and Licensee accepts, a personal, non-exclusive, and nontransferable (except as set forth below) license to use the Software in accordance with the Documentation.
(2) License Types/Grants/Use.
(a). Definitions:
(i). “Authorized User” shall mean a collective reference to Self-Hosted Users and Education Innovations Managed and Software as a Service (“SaaS”) Hosted Users.
(ii). “Hosted User Information” shall refer to personally identifying information, such as the user’s name, provided by Hosted Users to Education Innovations hosted applications. Hosted User Information shall not mean or be interpreted to be curricula or any user-created, hosted, or linked to media or other materials.
(iii). “Education Innovations Content” shall mean proprietary information, materials, databases and other content owned by or licensed to Education Innovations, whether or not proprietary, which are made available to each self-hosted user through Education Innovations self-hosted Software or to each hosted user through Education Innovations SaaS.
(iv). “Education Innovations Hosted Software” applications shall mean Education Innovations’ software applications known as Think CheckTM, Check PointsTM or Finer PointsTM made available over the Internet by Education Innovations through Managed Hosting.
(v). “Education Innovations Self-Hosted Software” applications shall mean Education Innovations’ software application known as Think CheckTM, Check PointsTM or Finer PointsTM, in object code form only, that has been licensed for 3rd party hosting by licensee.
(vi). “Educational Content” shall mean any content originally provided by Licensee, or an authorized user, to Education Innovations Hosted Applications, or Education Innovations Self-Hosted software in the course of its normal use and operation. Educational Content does not include Hosted User Information.
(vii). “Self-Hosted User” shall mean Licensee or Licensee’s employee, consultant, or independent contractor who has received a valid Site Key from Education Innovations provided that for each individual using the Education Innovations Self-Hosted Software a separate and valid license for each such individual has been purchased.
(b). Named Users License(s):
(i). Licensee may use the Software provided that a separate and valid license has been purchased specifically for each user under this Agreement. Each user constitutes a Named User. A Named User can be changed by Licensee provided that the original Named User ceases using or having access to the Software and the substitute Named User accepts all the terms and conditions of this Agreement. No more than one (1) person shall be a Named User or permitted to use the Software under the same license at the same time. Named User License(s) prohibit the use of concurrent, shared or multiple uses of an individual Software license.
(ii). License Granted - Named User License (s) – Self- Hosted. Subject to the terms and conditions of this Agreement, Education Innovations grants to Licensee a worldwide, non-exclusive, non-transferable and non-assignable license for Self-Hosted users solely to (i) access and execute Education Innovations self-hosted Software only using a Site Key, and only for Licensee’s internal operations at the Site; and (ii) input, upload, download and modify the Education Innovations Content available through Education Innovations Self-Hosted Software in connection with the normal course of the operation of Education Innovations Self-Hosted Software. This license does not include the right to grant sublicenses or to make derivative works of Education Innovations Self-Hosted Software.
(iii). License Granted - Named User License (s) – Hosted (Software as a Service “SaaS” and Managed Host). Subject to the terms and conditions of this Agreement, Education Innovations grants to Licensee a worldwide, non-exclusive, non-transferable and non-assignable right to permit Managed Host and SaaS Users solely to (i) access and use Education Innovations Software from the Host Site, only using a password and only for Licensee’s internal purposes; (ii) access Education Innovations Hosted applications and the Education Innovations Content as both are located on Education Innovations’ server(s); (iii) establish, maintain, administer and modify the Educational Content.
(iv). For Managed Host and SaaS applications, Licensee hereby grants Education Innovations, a non-exclusive, non-transferable, royalty free license to reproduce, display and use the Educational Content for Education Innovations to fulfill its duties hereunder. Except as provided in this Section, Licensee shall at all times retain whatever ownership rights Licensee has in the Educational Content, including, without limitation, Intellectual Property Rights.
(c). Concurrent User License(s):
(i). The application as a shared resource that is based on the number of simultaneous users authorized to access the program at any one point in time which is managed by the software’s application license manager. For example, in a five-user concurrent use license, after five users are logged on to the program, the sixth user is prohibited. When any one of the first five logs out, the next person can log in.
(ii). License Granted – Self Hosted. Subject to the terms and conditions of this Agreement, Education Innovations grants to Licensee a worldwide, non-exclusive, non-transferable and non-assignable license for Self-Hosted users solely to (i) access and execute Education Innovations Self-Hosted Software only using a Site Key, and only for Licensee’s internal operations at the Site; and (ii) input, upload, download and modify the Education Innovations Content available through Education Innovations Self-Hosted Software in connection with the normal course of the operation of Education Innovations Self-Hosted Software. This license does not include the right to grant sublicenses or to make derivative works of Education Innovations Self-Hosted Software.
(iii). License(s) Granted – Hosted (Software as a Service “SaaS” and Managed Host) Subject to the terms and conditions of this Agreement, Education Innovations grants to Licensee a worldwide, non-exclusive, non-transferable and non-assignable right to permit SaaS and Hosted Users to (i) access and use Education Innovations Software from the Host Site, only using a password and only for Licensee’s internal purposes; (ii) access Education Innovations Hosted applications and the Education Innovations Content as both are located on Education Innovations’ server(s); (iii) establish, maintain, administer and modify the Educational Content. For Managed Host and SaaS applications, Licensee hereby grants Education Innovations, an exclusive, transferable, royalty free license to reproduce, display and use the Educational Content at Education Innovations’ sole discretion.
(3) Limitations on Use.
(a) Licensees may not copy, rent, lease, sell, sublicense, assign, loan, time-share or otherwise transfer or distribute copies of the Software or the Documentation, nor give access to any of the software or materials derived from or delivered through any Education Innovations’ except as expressly set forth in this agreement. Licensee may physically transfer the Software from one computer to another provided that Licensee does not retain any copies of the Software in excess of the licenses purchased, including any copies stored on a computer. Licensee may not permanently transfer this license to another user, but only if Licensee transfers or destroys all copies of the Software, and the recipient agrees in writing to be bound by all of the terms of this Agreement. (b) Licensee agrees that it will not decompile, disassemble, or otherwise reverse engineer the Software, and Licensee will use its best efforts to prevent Licensee’s employees and contractors from doing so, except to the extent that such restriction is expressly prohibited by applicable law. Licensee may not modify, adapt, create a derivative work, merge, or translate the Software without the prior written consent of Education Innovations. (c) Specific third-party Suppliers may be identified in the Documentation which is sold or licensed by Education Innovations. Licensee may be required to agree to additional terms and conditions specific to particular third-party Suppliers, as described in the Documentation, and are incorporated herein by reference. Education Innovations requires Licensee to 1) refrain from improper or unauthorized copying of the third-party Supplier product(s), or portions thereof, except for reasonable backup purposes; and 2) refrain from any reverse engineering, decompilation and/or disassembly of the third-party Supplier product(s), or portions thereof, save to the extent permitted under any relevant laws. (d) If the Software licensed includes Supplier software which integrates a full or partial copy of third party software into the Software, the Supplier software may only be used with the Education Innovations product with which it was provided and accessing data that is not created or used by the Education Innovations product is not permitted.
(4) Intellectual Property Rights. Licensee acknowledges that Education Innovations or its Suppliers retain exclusive ownership of all copyrights, trademarks, patents and/or other intellectual property rights in and to the Software. Licensee is not granted any rights in the Software other than the license rights expressly set forth in Section 2 ("License Types/Grants/Use").
(5) Term and Termination. The term of this license is perpetual except where restricted by relevant laws. This license automatically terminates if Licensee fails to comply with any of the terms and conditions of this Agreement. Licensee agrees that, upon such termination, Licensee will either destroy (or permanently erase) all copies of the Software, or return the original Software to Education Innovations. Licensee may terminate this license at any time by destroying the Software and any permitted copies. Sections 3, 4, 5, 6, 7, 8, 9, 12, 13and 14 shall survive any termination of the license or this Agreement.
(6) Limited Warranty and Limited Remedy – Self-Hosted Software. Education Innovations warrants to the original end user purchaser only that the Software as delivered at the time of purchase will substantially conform to the Documentation, and that the original media and Documentation are free from defects in material and workmanship under normal use for a period of time from the Licensee’s original purchase date thereof (the “Limited Warranty Period”), provided the Software is used in accordance with the Documentation and with compatible computer hardware and operating systems. The Limited Warranty Period for all Education Innovations Software is ninety (90) calendar days .This limited warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Education Innovations’ entire liability and Licensee’s sole and exclusive remedy shall be, at Education Innovations’ option, either to (a) correct or help Licensee work around or avoid a reproducible Error or (b) replace defective media or Documentation. An “Error” is a defect in the Software that causes it not to perform substantially in accordance with the limited warranty set forth above. Any replacement Software will be warranted for the remainder of the original warranty period only.
(7) No Liability of Suppliers. Licensee acknowledges that its rights under this Agreement, in the nature of warranty or otherwise, are solely against Education Innovations. NO SUPPLIER MAKES ANY WARRANTY, ASSUMES ANY LIABILITY, OR UNDERTAKES TO FURNISH TO LICENSEE ANY SUPPORT OR INFORMATION CONCERNING THE SOFTWARE OR ANY PORTION OF THE SOFTWARE. Licensee hereby releases all Suppliers from any claims, damages or losses arising from the use of the Software, regardless of the form of action.
(8) Disclaimer of Warranties. EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. ALL OTHER WARRANTIES ARE DISCLAIMED, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE SOFTWARE’S FUNCTIONS WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH LICENSEE. If a disclaimer of implied warranties is not permitted by law, the duration of any such implied warranty is limited to the time period for the specific Software product purchased, as stated in Section 6 above “Limited Warranty and Limited Remedy” from the date of purchase by the original Licensee purchaser. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so such limitations or exclusions may not apply to Licensee. This limited warranty gives Licensee specific legal rights, and Licensee may also have other rights which vary from jurisdiction to jurisdiction.
(9) Liability Exclusions and Limitations. IN NO EVENT SHALL EDUCATION INNOVATIONS OR ANY SUPPLIER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, DATA LOSS, IMPROPER DATA DISCLOSURE, INTELLECTUAL PROPERTY INFRINGMENT, LOSS OF ACCREDIDATION, TERMINATION OF CONTRACTS OR GRANTS, REQUIREMENT TO REFUND TUITION OR OTHER ASSOCIATED FEES, LOSS OF USE ,OR INTERRUPTION OF BUSINESS), OR FOR LEGAL FEES, ARISING OUT OF THE USE OF THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF EDUCATION INNOVATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EDUCATION INNOVATIONS’ AGGREGATE LIABILITY HEREUNDER EXCEED THIRTY (30) DAYS’ LICENSE FEES PAID BY LICENSEE. This limitation shall apply notwithstanding any failure or inability to provide the limited remedies set forth above. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation(s) or exclusion(s) may not apply to Licensee.
(10) Proprietary Rights-Contracts with Certain U.S. Government Agencies. If the Software is acquired or licensed under the terms of a Department of Defense or civilian agency contract, the Software is “commercial item” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of the DoD FAR Supplement and its successors. All U.S. Government end users acquire or license the Software with only those rights set forth in this Agreement.
(11) Export Restrictions. The U.S. Government maintains certain embargoes and restrictions that vary from country to country for the export and re-export of certain commodities and technical data of United States origin, including Software in any medium. Education Innovations, and its entities and employees, worldwide, are prohibited from all dealings with any country on the Office of Foreign Assets Control ("OFAC") of the United States Department of the Treasury Trade Sanctions List located at United States Department of Commerce Bureau of Industry and Security http://www.pmddtc.state.gov/embargoed_countries/index.html in addition to restricting business transactions with individuals on the Denied Persons List located at http://www.bis.doc.gov/dpl/default.shtm.
Neither Education Innovations or Licensee shall export, directly or indirectly, any information acquired under this Agreement or any products utilizing any such information to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such United States and foreign government license or approval.
(12) Severability. Licensee acknowledges and agrees that each provision of this Agreement that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement. Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement.
(13) Audit Rights. Education Innovations, or an Education Innovations designated agent, (the “Auditor”) may, upon three (3) business days written notice (including notice sent via e-mail or facsimile) to Licensee, inspect any of Licensee’s facilities (including, without limitation, in-person and/or remote examination of Licensee’s network, servers, log files, IP tables, offline media, workstations, deployed computing devices, data-capable phones, storage devices, user account records, network or facility access records, student data, grade book or database entries) where the Software is used and audit records for the purpose of confirming Licensee’s compliance with the exercise of the licenses granted in Section 2 “License Types/Grants/Use”. All such audits will be conducted during reasonable business hours and in a manner that does not unreasonably interfere with Licensee’s activities. The audit shall be performed at Education Innovations’ sole expense; provided however, that if, as a result of the Education Innovations audit, it is determined that Licensee is out of compliance by five percent (5%) of Licenses Granted and that Licensee owes Education Innovations additional fees, then Licensee shall bear the reasonable cost of Education Innovations’ audit and pay all past-due fees, in addition to such other remedies as Education Innovations may have under the terms and conditions between Licensee and Education Innovations.
(14) Data Collection. Education Innovations may provide directly, or through qualified third parties, corrective and preventative technical support services under the terms of this Agreement. Licensee expressly consents to the provision and collection of certain Licensee information and data in connection with the services. The personal information Education Innovations collects will be used by Education Innovations, and its third party suppliers, to 1) provide the technical support service(s) or the transaction(s) Licensee has requested or authorized; 2) be used to request additional information on feedback that Licensee provides about the product or service that Licensee is using; 3) to provide critical updates and notifications regarding the pre-release software; or 4) to improve the product or service, i.e. fixing reported product issues. Licensee expressly consents to Education Innovations permitting certain third parties and consultants that it retains to perform services on its behalf to access Licensee’s information and data solely to perform the services for Licensee. The Licensee is responsible for providing any required notices and/or obtaining any required consents relating to collection and use of such data (including any such consent necessary for Education Innovations to provide these services). The Licensee is responsible for taking the steps necessary to ensure that the Licensee’s use of the services complies with applicable laws, regulations, and codes of practice. Licensee acknowledges that to the extent permitted by law, Education Innovations assumes no responsibility for storage of Licensee data or information.
(15) General. This Agreement supersedes all prior written statements, proposals or agreements relative to its subject matter. It may be not be modified except by written agreement signed by two (2) authorized representatives of Education Innovations. No Education Innovations dealer or sales representative is authorized to make any modifications, extensions or additions to this Agreement. This Agreement is governed by the laws of the State of Nevada without application of its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Last updated July 25, 2012
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