LEAMOS PROGRAM END USER LICENSE AGREEMENT
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS PRODUCT. BY CLICKING THE ACCEPTANCE BUTTON AND/OR USING THE PRODUCT YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
Last Modified on April 12, 2018
This Agreement sets forth the terms and conditions of your use of the accompanying LEAMOS™ educational software program (the "Program"). For the purposes of this Agreement, "you" means you, the end user and any Students (as defined herein), and "Licensor" means PROLITERACY WORLDWIDE and its subsidiaries and affiliates. The Program is a web-based service provided by Licensor designed to teach Spanish language literacy to users (the "Courses") and all computer software, manuals, workbooks, curricula and training protocols provided in connection with such services.
1.1. "Content" means, collectively, all information, data, documents, text, messages and other communications, software, music, sound, photographs, graphics and video that are uploaded, or caused to be uploaded onto or downloaded or caused to be downloaded, from the Courses by you or your Students.
1.2. "Student" means an end-user of the Courses who you have authorized to use the Courses under your Subscription and who has agreed in writing to comply with the provisions of Sections 2.2, 2.5 and 9.6 of this License Agreement.
1.3. "Subscriber", "you" or "your" means you and/or your employees, agents, representatives, systems administrators, affiliates, subsidiaries, subcontractors, licensors, licensees, and third parties authorized to access the Courses under your Subscription.
1.4. "Subscription" means the use of the Courses by you and/or your Students in accordance with the terms and conditions of this License Agreement.
2. License Grant
2.1. Licensor hereby grants to you a non-exclusive and non-transferable license to use the Program and related documentation, including, collectively, all information, data, documents, text, messages and other communications, software, music, sound, photographs, graphics and video that are uploaded, or caused to be uploaded onto or downloaded or caused to be downloaded, from the Courses by you or your Students (the "Documentation") solely for the intended purposes of the Program as set forth in the Documentation, according to the provisions contained herein and subject to payment of applicable license fees. You are not permitted to lease, rent, sell, distribute or sublicense the Program or any rights therein. You may only access the Program through the LEAMOS™ website with credentials provided to you by Licensor and may not install the Program on a network server, use the Program in a time-sharing arrangement or in any other unauthorized manner. Further, no license is granted to you in the source code of the Program. Except as provided below, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in the Program and Documentation.
You agree that you have no right, power or authority to make any modifications to or unauthorized copies of the Program. You shall not, and shall not permit any third party to decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any portions of the Courses, except to the extent permitted by applicable law.
You agree that Licensor owns and holds title to the Program and any Documentation and all subsequent copies thereof regardless of the form or media. Furthermore, title, ownership rights, and intellectual property rights in the Program and any Documentation shall remain with Licensor. The Program and any Documentation are protected by copyright and other intellectual property laws and by international treaties.
Subject to all of the terms and conditions of this License Agreement, Licensor will provide you with online access to and use of the Courses and permits you to provide access to the Courses to the number of Students corresponding to your Subscription, via the Internet by use of a browser provided by each Student. The Courses are hosted on a server that is maintained by Licensor or its third-party designee.
2.2. Availability of the Courses. We will make commercially reasonable efforts to make the Courses available for you and your Students on a 24x7 basis, except that the Courses may be unavailable from time to time for any reason, including without limitation, interruption due to network connectivity, network and server outages, and backup and regular maintenance. We will make commercially reasonable efforts to conduct regular maintenance and backups at times other than standard business hours. You and your Students are responsible at your or your Students' own expense to acquire access to the Internet, including any services, equipment and access devices necessary to access the Courses via the Internet. We may specify from time to time the version(s) of related products, such as supported browser versions, required to use the Courses.
2.3. Setup. Implementation. Customization. Training. Updates. Upgrades. Downgrades. Technical Support. Licensor may, in its sole discretion, modify any of the features, components and functionality of the Courses from time to time; provided, however, that Licensor will use commercially reasonable efforts to provide you and your Students with advance notice of any modification or maintenance of the Courses that is expected to significantly affect your or your Students' use of, or ability to access, the Courses. Licensor has sole discretion to determine the content, timeliness, frequency and cost of any updates, upgrades or downgrades of the Courses, and Licensor will give you advance notice of the release and cost of any such updates, upgrades or downgrades. We will make commercially reasonable efforts to correct bugs, defects or errors that we determine in our sole judgment will have a material effect on the access to or operation of the Courses in accordance with this License Agreement. Unless otherwise set forth in this License Agreement, we will provide you with setup, implementation, customization, training, and technical support services on the use of the Courses at a time and location and in a manner and frequency and timeliness that we determine at our sole discretion. We will have no responsibility to provide any support or training for any third-party products or services that you use with the Courses including, but not limited to, telecommunications, access to the Internet, web browsers, Internet service providers, applications service providers, applications software, networking, operating systems and computer hardware.
2.5. Proprietary Rights. As between the parties, subject to the rights granted in this License Agreement, Licensor retains all right, title and interest in and to the Courses (excluding Content) and all intellectual property and proprietary rights anywhere in the world therein. The Courses contain proprietary and confidential information and are protected by trademark, copyright or other intellectual property laws and international treaty provisions. You agree to maintain the confidentiality of such proprietary and confidential information and not to disclose any such information to any third party without our prior written consent. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively, "Marks") of Licensor are and will remain our exclusive property and nothing in this License Agreement grants you the right to use any of the Marks.
2.7. Outside Resources. At our sole discretion and at any time without prior notice we may, but will have no obligation to, add to or remove from the Courses links to third-party websites or resources that provide content, advertising, products, services or other materials that are not directly under our control (collectively, "Outside Resources").
3. Fees. Payment Terms. Billing Disputes. Taxes. In consideration of our granting you access to the Courses hereunder, you agree to pay all fees specified on the Site or in our invoice to you ("Fees"). All Fees are payable in US dollars. You are responsible for all transmission fees, currency exchange fees, wire and bank fees chargeable by or deducted from remittances by any bank, including the transmitting, intermediary or recipient bank. If we permit you to pay using a credit card, you will give us a valid credit card number and notify us at once if the card expires, is cancelled, replaced, or if the billing address changes. You are responsible for and will pay any applicable taxes applicable to your Subscription or implementation and use of the Courses, including but not limited to, federal, state, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in effect or enacted in the future. If you are exempt from payment of any such taxes, you will provide us with an original government-issued certificate attesting to the tax-exempt status.
4. Term. Termination.
4.1. Term. Unless otherwise set forth in writing by us, this License Agreement begins on the date when we first make the Courses accessible to you and continues in effect until your Subscription expires or is terminated in accordance with this Section 4. Upon termination of this License Agreement or expiration or any termination of your Subscription, you will immediately cease all access to and use of the Courses and you shall cause your Students to do the same. All licenses granted under this License Agreement will automatically terminate immediately upon any termination and such rights shall revert to Licensor.
4.2. Termination by Us. Upon written notice, at our sole discretion with or without cause we may (a) discontinue the Courses or any part thereof, or (b) suspend or terminate your Subscription, with or without notice if you (i) do not pay Fees when due, or (ii) engage in any conduct that we determine at our sole and absolute discretion (x) violates this License Agreement, violates our rights or the rights of any third party, or (z) is unlawful or otherwise inappropriate. Upon termination we may delete all Content and terminate your access, and your Students' access, to and use of the Courses. We will not be liable to you, your Students or any third-party for any termination of access to the Courses.
4.3. Fees Upon Termination of Subscription. Upon expiration of your Subscription or termination of this License Agreement or your Subscription, you will remain obligated to pay all unpaid, accrued fees due under this License Agreement, and for charges incurred by us owing to your non-payment such as (but not limited to) collection costs and attorney's fees.
4.4. Upon Termination by You. All Fees are non-refundable and the full amount of unpaid Fees during the term of your Subscription shall be immediately due and payable if you terminate your Subscription prior to its expiration date.
4.5. Upon Termination by Us. If we discontinue the Courses or any part thereof, or terminate your Subscription without cause, you will only be responsible for the payment of Fees accrued through the date of termination, including a pro-rated portion of the Fees payable for the term of your Subscription. If we terminate your Subscription for cause, including without limitation your breach of this License Agreement or your or your Students' improper use of the Courses, you will be responsible for the entire amount of the Fees payable for the term of your Subscription, including without limitation unbilled Fees, plus a disconnect fee, all of which shall be immediately due and payable. If we terminate your Subscription because your credit card was declined, charges were reversed or otherwise for non-payment, you shall be fully liable to us for all accrued Fees.
4.6. Survival upon termination. Sections 2.5, 4.4, 4.5, 4.6, 5, 6, 7, 8 and 9 of this License Agreement will survive either the expiration of your Subscription or the expiration or any termination of this License Agreement.
5. Disclaimer of Warranties. YOUR USE OF THE COURSES IS AT YOUR SOLE RISK. THE COURSES ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. WE EXPRESSLY DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS LICENSE AGREEMENT OR THE COURSES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT (i) THE COURSES WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS; (ii) THE OPERATION OF THE COURSES OR OUTSIDE RESOURCES WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, OR ERROR-FREE; (iii) OUR SECURITY MEASURES AND PRACTICES WILL PROTECT FROM UNAUTHORIZED ACCESS, INTRUSIONS, TAMPERING OR OTHER SECURITY BREACHES; (iv) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COURSES OR OUTSIDE RESOURCES WILL BE ACCURATE OR RELIABLE; (v) WE WILL CORRECT ALL BUGS, DEFECTS, OR ERRORS IN THE COURSES, OR OTHERWISE SUPPORT OR MAINTAIN THE COURSES; (vi) THE COURSES WILL BE FREE OF ALL VIRUSES OR OTHER HARMFUL COMPONENTS OR (vii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU OR YOUR STUDENTS THROUGH THE COURSES WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE COURSES IS DOWNLOADED OR OBTAINED AT YOUR OR YOUR STUDENTS' OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR OR YOUR STUDENTS' COMPUTERS SYSTEMS OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU OR YOUR STUDENTS FROM LICENSOR OR THROUGH OR FROM THE COURSES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS LICENSE AGREEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PROGRAM REMAINS WITH YOU.
6. Indemnity. You will fully indemnify, defend and hold harmless us, our affiliates, subsidiaries, licensors, licensees and subcontractors, and their directors, officers, agents and employees (collectively, "Indemnitees"), from any and all claims, demands, causes of action, suits and proceedings (including fines, penalties, costs, damages, losses, judgments, settlements, and expenses, such as reasonable attorneys' fees) asserted by any third party arising from or relating to (i) any errors, omissions or any other actions arising out of or related to your use of the Courses or use of the Courses by any of your Students; (ii) your placement or transmission, or placement by any of your Students, of any Content through the Courses; (iii) your violation, or violation by any of your Students, of any term of this License Agreement; or (iv) your violation, or violation by any of your Students, of our or another party's rights.
7. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR SHALL NOT BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (i) ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR CONTENT, INTERRUPTION OF BUSINESS, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE PROGRAMS (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN)OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (ii) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS; (iii) ANY FAILURE OF PERFORMANCE OUTSIDE OF OUR REASONABLE CONTROL OR RESULTING FROM YOUR OR ANY THIRD PARTY'S EQUIPMENT; OR (iv) ANY AMOUNTS IN EXCESS OF THE FEES IN AGGREGATE PAID TO US HEREUNDER DURING THE SIX (6)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE.
8. Dispute Resolution. All disputes relating to the validity, construction or performance of this License Agreement will be resolved by arbitration under the Rules and Procedures of the American Arbitration Association that are in effect at the time the arbitration is initiated. Such arbitration will be held Syracuse, New York, before a single arbitrator. The decision of the arbitrator will be conclusive, binding and final and may be enforced in any court of competent jurisdiction. You must initiate a dispute arising out of or related to this License Agreement within one (1) year after such claim or cause of action arose or it will be forever barred. If any action is brought to enforce or interpret the terms of this License Agreement, the prevailing party will be entitled to an award of reasonable attorneys' fees it has incurred in addition to any other relief to which that party may be entitled.
9.1. Governing Law and Jurisdiction. This License Agreement will be governed by the laws of the State of New York without regard to its conflicts of law provisions. Both parties agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within the county of Onondaga, New York.
9.2. Force Majeure. Neither party will be liable for any damages or penalties for delays in the performance of or failure to perform any obligation hereunder or for failure to give the other party prior notice thereof when such delays or failures are due to the elements, acts of God, acts of governmental or regulatory agencies, compliance with laws or regulation (including, without limitation, those related to infringement), terrorism, infrastructure problems, strikes or lockouts, civil unrest, riots, shortages of materials or supplies, telecommunications carrier outages and other interruptions of carrier services, delays in transportation, delays in delivery by vendors or other causes beyond that party's reasonable control.
9.3. Entire Agreement. Partial Invalidity. No Waiver. Modifications. Section Titles. Assignees. This License Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements, either oral or written, between the parties hereto with respect to your Subscription or use of the Courses. No representations, inducements, promises, or License Agreement, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and no other License Agreement, statement, or promise not contained in this License Agreement will be valid or binding. If any provision in this License Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. The failure of either party in one or more instances to insist on the other party's performance of any of the provisions of this License Agreement will in no way be construed to be a waiver of such provisions in the future. The section titles in this License Agreement are for convenience only and have no legal or contractual effect.
9.4. Notices. All notices and other communications shall be in writing and delivered by an overnight courier service with tracking capabilities, or certified mail, return receipt requested, postage prepaid. Notices shall be sent to Licensor at PROLITERACY WORLDWIDE, 101 Wyoming Street, Syracuse, NY 13204 and to you at the address set forth in the Subscription enrollment electronic or paper forms. A party may change its address for notices from time to time by providing notice to the other party pursuant to this Section 9.4. Notices shall be effective only upon receipt, except notice shall be deemed received three (3) days after deposit in the mails.
9.5. Assignment. You may not assign any of your rights or obligations hereunder without our prior written consent and any purported assignment without such consent shall be null and void. We may freely assign our rights and obligations under this License Agreement. This License Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, transferees and permitted assignees.
9.6. Compliance with Export Laws. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls"). Without limiting the generality of the foregoing, you will not, and you will require your Students not to, export, direct or transfer the Courses, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
9.7. U.S. Government Users. If you are, or are entering into this License Agreement on behalf of, any agency or instrumentality of the United States Government, the Courses is "commercial computer software" and "commercial computer software documentation," and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Courses is governed by the terms of this License Agreement.
10. Acknowledgement. By downloading, installing or using any part of this Program, you indicate that you have read this License Agreement, understand it, and agree to be bound by its terms and conditions.