Waterford Research Institute, LLC END-USER SOFTWARE LICENSE AGREEMENT (Waterford Early Learning™ Interactive Whiteboard Lessons / ActivLessons)
This END-USER SOFTWARE LICENSE AGREEMENT (“EULA”) is between WATERFORD RESEARCH INSTITUTE, LLC, a Utah limited liability company, which is granting this license (“Waterford”) and the end-user (“you”). By installing and/or using the Software you agree to this EULA. 1. Definition of Software. “Software” means the flipchart presentation data file(s) that this EULA accompanies which Waterford has developed using, and which can be opened and used by you using, ActivInspire software separately provided by or available from Promethean Ltd. and active whiteboard hardware separately provided by Promethean Ltd. or otherwise, on which the ActivInspire software operates. Waterford or its licensors have proprietary rights in certain of the content of such presentation data files and any related materials or documents, and any subsequent revisions provided to you. 2.
License.
2.1. You may install and use the Software on a single computer. 2.2. The license granted under this EULA is a personal, non-transferable, non-exclusive license in executable/object code solely for your own use. Such license is granted on the condition that you use the Software only for instructional and educational purposes and not for any other purpose, including any commercial capacity. The license granted by this EULA shall apply only to the Software in its object code version and nothing in this EULA grants any rights to the source code version of the Software. 3.
Restrictions and Covenants.
3.1. In connection with your use of the Software, you may not remove or alter any copyright, trademark, service mark or other proprietary notices or legends of Waterford. 3.2. You may not publish, distribute, retransmit or provide access to the Software content without the prior written consent of Waterford, which is subject to Waterford’s sole discretion. 3.3. You shall not sell, resell or exploit for any commercial purpose any portion of the content provided within the Software. 3.4. You shall not copy or permit any party to copy the Software, except to make a single copy solely for reasonable backup or archival purposes, but only with the inclusion of copyright and proprietary notices. 3.5. You shall not sublicense, assign, transfer or otherwise make the Software available to any third party. 3.6. You shall not modify, decompile, disassemble or otherwise reverse engineer the Software or create derivative works based on the Software.
3.7. You shall remove all versions of the Software before selling, transferring, or otherwise disposing of any computer or server on which the Software has been installed. 4. Title and Ownership; Confidentiality. Waterford or its licensors shall retain title to, and ownership of, the Software and any patent, copyright, underlying trade secret and other intellectual property rights in the Software. Certain elements of the Software are proprietary and confidential to Waterford and/or its licensors. You shall not disclose, provide or otherwise make available the Software or any proprietary content thereof or copies thereof to any third party. You shall be responsible for any violation of the foregoing covenants by your employees or agents, and shall take reasonable steps to keep the Software secure, and prevent unauthorized access, copying or use thereof. You agree to notify Waterford immediately if you become aware of any unauthorized access to or use of the Software by any person or entity. 5. Disclaimer of Warranty. Your use of the Software is at your sole risk. The Software and related documentation and materials, if any, are provided “AS IS” and without warranty of any kind. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WATERFORD EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. WATERFORD DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. FURTHERMORE, WATERFORD DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OPERATION WITH ANY SPECIFIC HARDWARE OR SOFTWARE OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WATERFORD OR ITS AGENTS OR RESELLER SHALL CREATE ANY WARRANTY. 6. Limitation of Liability. In no event shall Waterford or its third party licensors be liable for damages as a result of your use of the Software, including, but not limited to loss of profits, opportunity, data or for indirect, incidental, special or consequential damages arising out of or in connection with the use or performance of the Software, even if notice has been given of the possibility of such damages. In no event will Waterford or its third party licensors be liable for any amount greater than the initial license fee paid for the Software which allegedly caused the damage, even if Waterford shall have been informed of such damages or of any claim by any third party. 7. Intellectual Property. Waterford shall defend any action, suit or proceeding brought against you that alleges that any content in or component of the Software as to which Waterford claims any proprietary rights infringes a United States patent or copyright that Waterford is aware of, provided that you promptly notify Waterford in writing as soon as you become aware of the possibility of an action and give Waterford the opportunity, full authority, information and assistance for the defense of the action. Waterford shall pay all resulting damages and costs awarded against you but shall not be responsible for any settlement made without its prior written consent. Waterford may, at its option and expense: (i) replace or modify the Software so that infringement will not exist; (ii) remove the Software involved and refund a portion of the price
paid therefore as depreciated or amortized by an equal annual amount over the lifetime of the Software as established by Waterford; or (iii) obtain for you the right to continue using the Software. Waterford and its third party licensors disclaim all other liability for copyright, patent or other infringement, including any incidental or consequential damages. Waterford shall have no liability for any infringement or claim thereof based upon: (i) the combination of the Software with products not authorized by Waterford, (ii) modification or alteration of the Software by parties other than Waterford, or (iii) failure to install updates provided by Waterford. 8.
Term and Termination.
8.1. This EULA shall be effective upon your installation of the Software and shall remain effective until terminated. You may terminate this EULA at any time by destroying the Software, and any related documentation and materials. Waterford may terminate this EULA immediately without notice if you fail to comply with any of the provisions of this EULA. 8.2. Upon termination of this EULA, you shall immediately terminate use of the Software and immediately either return or destroy all copies of the Software and other proprietary materials and certify in writing as to such destruction or return. 8.3. Sections 3, 4, 5, 6, 7 and 9 of this EULA shall survive any termination of this Agreement. 9. Indemnity. You agree to indemnify and hold Waterford and its subsidiaries, affiliates, managers, officers, agents and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your use of the Software. 10.
Miscellaneous.
10.1. The failure or delay of any party to exercise any right or remedy provided for herein shall not be deemed a waiver of that right or of any other rights or remedies available hereunder. 10.2. You agree not to export the Software, or re-export or resell the Software from or in the country of installation, without first complying with all applicable export laws and regulations. The Software may not be downloaded into any country into which exports from the United States are prohibited. 10.3. Waterford shall have no responsibility or obligation whatsoever to provide support for the Software. 10.4. The Software may contain an electronic version of this EULA, or a link to this EULA on Waterford’s website, which alternate copies of this EULA shall have the same force and effect as a hardcopy of this EULA. 10.5. This Agreement shall be governed by the law of the State of Utah, United States of America. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. 10.6. This EULA states the entire understanding between the parties as to the Software licensed by you and shall take precedence over any omitted, conflicting or additional terms in any other agreement. 10.7. If any provision of this EULA is determined to be invalid or unenforceable by a court of
competent jurisdiction, the remaining provisions of this EULA shall not be affected and shall remain in full force and effect as though said invalid or unenforceable provision were not contained herein. 10.8. The English language version of this EULA shall prevail and any translation into other languages other than English is for convenience only. 10.9. Waterford may assign any or all of the rights and obligations under this EULA.
