Terms of Use - LockDown Browser

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE LOCKDOWN BROWSER SOFTWARE ("SOFTWARE"), THE INDIVIDUAL OR ENTITY LICENSING THE SOFTWARE ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT ("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 gives you a personal, worldwide, non-assignable and non-exclusive license to use the Software provided to you by Respondus. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Software as provided by Respondus, in the manner permitted by the terms of the Agreement.

You may not, and you may not permit anyone else to, (i) copy, modify, translate, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof; (ii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; or (iii) publish any results of benchmark tests run on the Software to a third party, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Respondus, in writing. This Software is intended only for use with a properly licensed, third-party learning management system (LMS).

Unless Licensor has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.

2. SOFTWARE. The Software is only available via an electronic download. 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. TERMINATION: This license Agreement shall terminate automatically if you fail to comply with the limitations described in this Agreement. No notice shall be required from Licensor to effectuate such termination. Upon termination, you must destroy all copies of the Software.

4. 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.

5. UPDATES AND PRIVACY. The Software will periodically and automatically check for a software update at the Respondus.com website. No information about your computer hardware and software is collected by Respondus, Inc. during this process. Instead, the LockDown Browser software retrieves information from Respondus.com and will display a message if an update is available. Our Privacy Policy is available at www.respondus.com/privacy.

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. HELP CENTER TERMS: The Respondus Help Center is a group of services ("Help Services") provided by Respondus, Inc. that enable users of the Software, also referred to below as LockDown Browser(r), to troubleshoot technical issues. The Help Services include, for example, a webcam check, a system check, the ability to report an issue to Respondus, and links to a knowledge base and technical support.

Accepting the Terms

In order to use the Help Services, you must first agree to the terms ("Help Center Terms") as outlined herein. You may not use the Help Services if you do not accept the Help Center Terms. You can accept the Help Center Terms by: (A) clicking to accept or agree to the Help Center Terms, where this option is made available to you by Respondus in the user interface of the Help Services or other Respondus services; or (B) by otherwise using the Help Services. In any case, you understand and agree that Respondus will treat your use of the Help Services as acceptance of the Help Center Terms.

Data Collection

Respondus collects data to operate effectively and to strive to provide you with the best experience with LockDown Browser. You provide some of this data directly, such as when you contact us for support. Some data is obtained by recording how you interact with LockDown Browser by, for example, receiving error reports or usage data from software running on your device. Some data is obtained by how you interact with the assessment delivery system, such as the amount of time spent answering a question. The data we collect within the Help Services depends on the features you use, and includes the following:

Webcam & Microphone Check. The webcam and microphone check streams video and audio from your webcam to the Respondus servers. The video and audio can then be played back by you to ensure the webcam and microphone are working properly. The video and audio recorded during the webcam and microphone check is stored in temporary cache on the Respondus server and is automatically deleted in about an hour. Persistent storage is not used for these recordings, and Respondus does not provide a way to electronically identify the recordings as being transmitted from a specific user.

System Check. The System Check gathers certain information from your computing device, the networking environment, and the institution's Learning Management System.

All data gathered during the System Check is presented to you on your screen, including a unique System Check ID. The System Check does NOT contain username, user ID, or the password used to access the institution's Learning Management System.

You have the option to send System Check results by email, and if so, you must enter an email address for the recipient of the email message. If the System Check results are sent by email, log files from software of LockDown Browser are additionally transmitted to a Respondus server. Log files contain details of the interaction between LockDown Browser and your institution's Learning Management System, from the time you log into the Learning Management System using LockDown Browser until the session is exited or terminated. Log files are stored locally on your computer in an encrypted format and, if transmitted to Respondus, are sent in encrypted format over HTTPS. Log files do NOT contain user name, user ID, or the password used to access the institution's Learning Management System.

System Check data and log files may be sent to a Respondus web server or a third party cloud server for storage and further processing by Respondus. Respondus may use System Check data and log files to assist you with a technical issue. Respondus may also aggregate and analyze the System Check data to, for example, improve the Software or its technical support services. System Check data and log files aren't sold, distributed, or made available to affiliate or third party businesses.

Report An Issue. The Report An Issue feature enables you to provide feedback to Respondus about LockDown Browser. System Check data and log files, as described above, are collected by Respondus during this process. You are informed of this transfer of data each time the Report An Issue feature is used. You may choose, but you are not required, to provide an email address and contact information when using this feature. System Check data, log files, contact information, and feedback you provide may be sent to a Respondus web server or third party cloud server for storage and further processing by Respondus. No data transmitted to Respondus from the Report An Issue feature will be sold, distributed, or made available to affiliate or third party businesses.

Knowledge Base. A link to a knowledge base is included with the Help Services. No individual data is collected by Respondus during the use of the knowledge base, although Respondus may analyze aggregated usage data of the knowledge base to improve the service.

Technical Support. The Help Services contains a link that enables users to open a support ticket with Respondus. The System Check ID for the most recent System Check is automatically populated in the form used to create a support ticket. You must additionally enter your name and a valid email address through which communication with the Respondus support team will occur. Throughout the support process, you may, at your own discretion, provide personally identifiable information that will be used by the Respondus support team to analyze the issue and communicate with you. All communication between you and the Respondus team is stored on a Respondus web server, and may be used by Respondus to improve LockDown Browser.

12. 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.

13. 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.