| ARTICULATE SOFTWARE END-USER LICENSE AGREEMENT |
NOTICE: READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE
INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE ACCOMPANYING THIS
AGREEMENT. CLICKING ON THE "I ACCEPT" BUTTON BELOW, OR IN ANY OTHER WAY
INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE, CREATES A LEGALLY
ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS
OF THIS AGREEMENT WITHOUT MODIFICATION.
RETURN: IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF
YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST
CLICK ON THE "CANCEL" BUTTON BELOW, AND YOU MUST NOT INSTALL, ACCESS, COPY
OR USE THE SOFTWARE, AND YOU MUST, WITHIN 3 DAYS, DELETE AND PERMANENTLY
ERASE FROM ALL COMPUTER MEMORIES AND STORAGE MEDIA ALL COPIES OF THE
SOFTWARE AND DOCUMENTATION, AND TO OBTAIN A REFUND, YOU MUST NOTIFY
LICENSOR IN WRITING THAT YOU HAVE COMPLIED WITH THE FOREGOING.
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This End-User License Agreement (the Agreement), effective as of
the date you accept the terms hereof (unless returned as specified above, the Effective
Date), is entered into between Articulate Global, Inc., a Delaware corporation, with an
address at 244 5th Avenue, Suite 2960, New York, NY 10001 USA (Licensor)
and Licensee. The parties agree as follows:
1. DEFINITIONS.
Documentation means the user guide, help information and/or
other documentation provided by Licensor with the Software.
Licensee means the User, together with the business or
other entity for which the Software is obtained.
Software means any Licensor computer program
(in object code) accompanying this Agreement.
Updates means, if applicable, any patch, update or
new version of the Software delivered to Licensee pursuant to the Support Services.
User means you, the individual who accepts this
Agreement, not any other person.
2. LICENSE.
2.1 Software. Subject to all terms and conditions in this
Agreement, Licensor grants Licensee a nonexclusive, nontransferable, nonsublicenseable
right and license to have the User use the Software and Documentation without
modification.
2.2 Limitations. User may use 1 copy of the Software solely
for Licensee's internal business purposes, and only on 1 computer. However, subject
to the same use limitations and restrictions, User may make a second copy and
install it either on a portable or on a home computer under his or her control, provided
that: (a) both copies of the Software are not used at the same time, and the
portable/home computer copy is used solely as allowed for such version or edition
(e.g., educational use only); and (b) the second copy of the Software is not installed
or used after the time such User is no longer the primary user of the computer on which
the primary copy of Software is installed. To activate a second copy as provided in
this Section 2.2, User must send an email request (including his/her product key) to
support@articulate.com.
2.3 License Control. Licensee acknowledges that the Software may
contain code or require devices that detect or prevent unauthorized use of, or disable,
the Software.
3. SUPPORT SERVICES.
3.1 Support. If and only if Licensee has ordered and paid for
a Platinum Membership Plan or other support plan, Licensor will use commercially
reasonable efforts to provide Licensee with Software maintenance and support in
accordance with its standard practices (as amended from time to time, Support Services).
Licensor shall have no obligation to support any version other than the then current
and immediate prior version. Licensee agrees that Licensor may charge in accordance
with its then current policies for any support services resulting from
(a) problems, errors or inquiries relating to any hardware, system, service or
other software or (b) use of any unsupported version of the Software.
3.2 Updates. Licensor will provide Licensee with any Update that it
makes generally available to its other licensees which have purchased the same
level of support. Any Update delivered by Licensor shall be treated as Software
for all purposes under this Agreement.
4. CONFIDENTIALITY.
4.1 Scope. The term Confidential Information means all trade
secrets, know-how, software and other financial, business or technical information
of Licensor or any of its suppliers that is disclosed by or for Licensor in relation
to this Agreement, but not including any information Licensee can demonstrate
is (a) rightfully furnished to it without restriction by a third party without breach
of any obligation to the Licensor, (b) generally available to the public without breach
of this Agreement or (c) independently developed by it without reliance on such
information. All Software and Documentation is Confidential Information.
4.2 Confidentiality. Except for the specific rights granted by
this Agreement, Licensee shall not possess, use or disclose any Confidential
Information without Licensor's prior written consent, and shall use reasonable care
to protect the Confidential Information. Licensee shall be responsible for any breach
of confidentiality by its employees.
5. PROPRIETARY RIGHTS.
5.1 Restrictions. Licensee shall not (a) use any Confidential
Information to create any software or documentation that is similar to any
Software or Documentation, (b) disassemble, decompile, reverse engineer or otherwise
try to discover any source code or underlying structures, ideas or algorithms of
the Software (except and only to the extent these restrictions are expressly prohibited
by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer
or distribute any Software, (d) copy, adapt, merge, create derivative works of, translate,
localize, port or otherwise modify any Software or Documentation, (e) use the Software
in an automated process, (f) use the Software, or allow the transfer, transmission,
export or re-export of all or any part of the Software or any product thereof, in
violation of any export control laws or regulations of the United States or any other
relevant jurisdiction or (g) permit any third party to engage in any of the foregoing
proscribed acts. Licensee shall not use the Software for the benefit of any third
party (e.g., time-share or service bureau arrangement) without Licensor's prior
written consent, at its discretion.
5.2 No Implied License. Except for the limited rights and license
expressly granted hereunder, no other license is granted, no other use is permitted
and Licensor (and its suppliers) shall retain all right, title and interest in and
to the Software and Documentation (and all patent rights, copyright rights, trade
secret rights and all other intellectual property and proprietary rights embodied therein).
5.3 Markings. Licensee shall not alter, obscure or remove any trademark, patent
notice or other proprietary or legal notice displayed by or contained in any
Software, Documentation or packaging.
5.4 Third Party Software. The Software may operate or interface
with software or other technology (In-Licensed Code) that is in-licensed from, and
owned by, third parties (Third Party Licensors). Licensee agrees that (a) it will use
In-Licensed Code in accordance with this Agreement and any other restrictions specified
in the applicable license set forth or referenced in the Documentation, (b) no Third
Party Licensor makes any representation or warranty to Licensee concerning the
In-Licensed Code or Software and (c) no Third Party Licensor will have any obligation
or liability to Licensee as a result of this Agreement or Licensee's use of the In-Licensed Code.
6. WARRANTY DISCLAIMERS.
THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET LICENSEE'S
REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT
PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE
AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER
OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE
CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING
SUBSTITUTE TECHNOLOGY, GOODS OR SUPPORT SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL,
RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO,
LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES, IN EXCESS OF
THE AMOUNT PAID TO LICENSOR FOR THE SOFTWARE OR SUPPORT SERVICE THAT GAVE RISE TO THE
CLAIM DURING THE PRIOR 12-MONTH PERIOD, EVEN IF LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER
PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY
REMEDY PROVIDED HEREIN.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall commence on the Effective Date and
continue in effect until terminated as provided herein.
8.2 Termination. Licensee may terminate this Agreement at any time
for its convenience upon written notice to Licensor. This Agreement shall
automatically terminate without further action by any party, immediately upon any material
breach by Licensee of any limitation or restriction set forth in Section 2.2 or 5.1.
8.3 Effects of Termination. Upon termination of this Agreement for any
reason, all rights, obligations and licenses of the parties hereunder shall cease,
except that (a) all obligations that accrued prior to the effective date of termination
and any remedies for breach of this Agreement shall survive any termination, (b) Licensee
shall promptly return or destroy all Software and other tangible Confidential
Information, and permanently erase all Confidential Information from any computer
and storage media and (c) the provisions of Sections 4 (Confidentiality), 5 (Proprietary Rights)
, 6 (Warranty Disclaimers), 7 (Limitation of Liability), 9 (General Provisions) and this
Section 8 shall also survive.
9. GENERAL PROVISIONS.
9.1 Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior negotiations, understandings or agreements
(oral or written), between the parties about the subject matter of this Agreement.
Terms set forth in Licensee's Purchase Order (or any similar document) that are in
addition to or at variance with the terms of this Agreement are specifically waived
by Licensee. All such terms are considered to be proposed material alternations of
this Agreement and are hereby rejected. No waiver, consent or modification of this
Agreement shall bind either party unless in writing and signed by the party against
which enforcement is sought. The failure of either party to enforce its rights under
this Agreement at any time for any period will not be construed as a waiver of such
rights. If any provision of this Agreement is determined to be illegal or
unenforceable, that provision will be limited or eliminated to the minimum extent necessary
so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its conflicts of
law provisions.
9.3 Remedies. Unless specifically provided otherwise, each right and
remedy in this Agreement is in addition to any other right or remedy, at law or in equity.
Licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5,
Licensor will suffer irreparable damage for which there is no adequate remedy at law.
Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to
prevent or restrain such breach or threatened breach, without the necessity of
posting any bond.
9.4 Notices. Any notice or communication hereunder shall be in writing
and either personally delivered or sent via confirmed facsimile, recognized express delivery
courier or certified or registered mail, prepaid and return receipt requested.
Notices shall be delivered to the address specified by Licensee when the Software was
ordered, or to the address above for Licensor, as the case may be, or at such other
address designated in a subsequent notice. All notices shall be in English, effective
upon receipt.
9.5 Assignment. This Agreement and the rights and obligations hereunder
are personal to Licensee, and may not be assigned or otherwise transferred, in whole or
in part, without Licensor's prior written consent. Any attempt to do otherwise shall
be void and of no effect. Without Licensee's consent, Licensor may assign this Agreement
to any third party. This Agreement shall be binding upon, and inure to the benefit of,
the successors, representatives and permitted assigns of the parties.
9.6 Independent Contractors. The parties shall be independent contractors
under this Agreement, and nothing herein will constitute either party as the employer,
employee, agent or representative of the other party, or both parties as joint venturers
or partners for any purpose.
9.7 License to the Government. If any user of the Software or
Documentation is a department, agency or other entity of the United States Government, the
use, duplication, reproduction, modification, release, disclosure or transfer of the
Software and Documentation is restricted in accordance with FAR 12.212 for civilian
agencies and DFAR 227.7202 for military agencies. The Software is commercial computer
software and the Documentation is commercial computer software documentation, and their
use is further restricted in accordance with the terms of this Agreement.
9.8 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY
DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS
AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN
DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO
ENTER INTO THIS AGREEMENT.
9.9 Acknowledgment. Licensee acknowledges that (a) it has read and
understands this Agreement, (b) it has had an opportunity to have its legal counsel review
this Agreement, (c) this Agreement has the same force and effect as a signed
agreement, (d) Licensor requires identification of the User and Licensee before issuing
this license and (e) issuance of this license does not constitute general publication of the
Software or any other Confidential Information.
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