BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE Respondus SOFTWARE ("SOFTWARE"), THE INDIVIDUAL OR ENTITY LICENSING THE SOFTWARE ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE.
AS USED IN THIS AGREEMENT, "RESPONDUS" and "LICENSOR" SHALL MEAN RESPONDUS, INC.
1. LICENSE GRANT. Licensor grants Licensee a non-exclusive license to use the Software and Documentation subject to the following terms:
a) You may: (i) use the Software on any single computer; (ii) use the Software on a second computer so long as the first and second computers are not used simultaneously; and (iii) copy the Software for back-up, archival purposes provided any copy must contain all of the original Software’s proprietary notices.
b) You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) install the Software on a network server or virtual server; (iii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iv) copy the Software or Documentation (except for back-up purposes); (v) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software or Documentation; (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; or (v) publish any results of benchmark tests run on the Software to a third party without the prior written consent of Respondus. The posting, downloading, and archiving features of this software are intended only for use with a properly licensed learning management system (LMS). You may require a license from a third party to post, download or archive data from a LMS, or to serve such files to this system.
2. SOFTWARE. If you receive the first copy of the Software electronically and a second copy on media the second copy may be used for archival purposes only and may not be transferred to or used by any other person. This license does not grant to Licensee any right to receive from Respondus hard-copy documentation, support services, or enhancements or updates to the Software.
3. PRIVACY: Details of the information Respondus collects and how that information is stored and used is available at www.respondus.com/privacy.
4. TERMINATION: This License Agreement shall terminate automatically if you fail to comply with the limitations described in this license. No notice shall be required from Licensor to effectuate such termination. Upon termination, you must destroy all copies of the Software and Documentation.
5. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in the Software and Documentation shall remain in Respondus and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Respondus' or its suppliers' ownership of or rights with respect to the Software. The Software is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Software is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content.
6. DISCLAIMER OF WARRANTY. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RESPONDUS, INC. FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE SOFTWARE RECEIVED BY RESPONDUS UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. RESPONDUS IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
8. INDEMNIFICATION. You agree to post, download, and archive only those materials for which you have the necessary patent, copyright and other permissions, licenses, and/or clearances. You agree to hold harmless, indemnify and defend Respondus, Inc., its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that you have distributed or copied any materials (other than materials provided by Licensor) in connection with the Software in violation of another party's rights or in violation of any law. If you are importing the Software from the United States, you shall indemnify and hold Licensor harmless from and against any import and export duties or other claims arising from such importation.
9. U.S. GOVERNMENT RESTRICTED RIGHTS: This Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR supplement, as applicable. Manufacturer is Respondus, Inc. You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied your export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
10. U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is defined in 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 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
11. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (c) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of Washington, U.S.A., excluding its conflict of law provisions. (d) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in King County, Washington, with the losing party paying all costs of arbitration. (e) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (f) The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only. (g) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (h) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (i) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee's assets to another entity. (j) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (k) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (l) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way. (m) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. (n) If any Respondus professional services are being provided, then such professional services are provided pursuant to the terms of a separate agreement between Respondus and Licensee. The parties acknowledge that such services are acquired independently of the Software licensed hereunder, and that provision of such services is not essential to the functionality of such Software. (o) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. (p) Licensor may use Licensee's name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Software and/or provide Licensee's name and the names of the Software licensed by Licensee to third parties.
12. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the U.S., then the provisions of this Section shall apply. (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s'y rattache, soient rediges en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language.") (ii) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Software, and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.