eLEARNING SYSTEM USER AGREEMENT THIS eLEARNING SYSTEM USER AGREEMENT (“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS OF THE LICENSE TO USE THE LEARNBURT eLEARNING SYSTEM (“SYSTEM”)AND CONTAINS THE ENTIRE AGREEMENT BETWEEN YOU (“LICENSEE”) AND BURT TECHNOLOGIES, INC. (“BURT”) WITH RESPECT TO THE TERMS AND CONDITIONS DESCRIBED HEREIN. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING. BY CLICKING ON THE “I ACCEPT” BUTTON, OR ACCESSING OR USING ANY PART OF THE SYSTEM, YOU CONSENT TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, CLICK ON THE “I DO NOT ACCEPT” BUTTON BELOW.
1. License Grant. Burt grants Licensee a limited, non-exclusive, non-transferrable license to use for educational purposes the System, free of charge, subject to the terms and restrictions set forth in this Agreement. Licensee is not permitted to use the System in any manner not expressly authorized by this Agreement. Licensee may reproduce the content contained on the user interface of the System for personal, educational purposes only. Licensee acknowledges and agrees that ownership of the System and all subsequent copies thereof, regardless of the form or media, are held by Burt. The terms of this Agreement will govern any System upgrades, made during the term of this Agreement and provided by Burt, that replace and/or supplement the original System, unless such upgrade is accompanied by a separate license agreement, in which case the terms of that license agreement will govern.
2. Limitations to License. Licensee shall not reverse engineer, decompile, or disassemble the System in whole or in part; nor shall Licensee attempt to recreate the source code from the object code of the System. Licensee shall not publicly distribute or publicly display the content contained on the user interface of the System. Any permitted reproduction must include all copyright and other proprietary notices without alteration. Licensee shall not modify, translate, adapt or create derivative works based on the System, including the content contained on the user interface of the System, nor attempt to disable any protective device incorporated into the System. Any modification will be deemed a breach of this Agreement, and such derivative work will be owned entirely by Burt.
3. Ownership Rights. The System is protected by United States copyright laws and international treaties. Burt, third-party component providers, and open source component providers own and retain all right, title and interest in and to the System, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Licensee’s possession, installation, or use of the System does not transfer to Licensee any title to the intellectual property in the System, and Licensee will not acquire any rights to the System except the limited right to use it as expressly set forth in this Agreement.
4. Term and Termination. The license granted hereunder is effective from the date of acceptance of this Agreement until terminated. Licensee may terminate the license at any time and for any reason. Burt may terminate the license at any time and for any reason by providing at least ten (10) days written notice of its intent to terminate. The license will terminate automatically if Licensee fails to comply with any of the terms, limitations or other requirements described in this Agreement. At termination, Licensee shall cease all use of the System and shall destroy any and all copies permitted hereunder.
5. New System; Evaluation. Licensee acknowledges and agrees that the System is a new addition to the services that Burt provides to its customers and, therefore, may contain bugs, defects and errors. Licensee further acknowledges and agrees that the System is being supplied to Licensee without charge in exchange for Licensee’s evaluation of the System. Licensee agrees to use and evaluate the System during the term of this Agreement. At Burt’s reasonable request Licensee shall provide to Burt evaluations regarding (i) the results of Licensee’s use and evaluation of the System, including any defects found in the System, and (ii) any recommendations for changes, modifications or improvements to the System. Burt may use or disregard, in its sole discretion and without compensation to Licensee, all such information and suggestions provided by Licensee, including, without limitation, use by incorporation of such information into the System or Burt products.
6. Nondisclosure and Confidentiality. Licensee acknowledges that the System may contain valuable trade secrets and confidential information owned by Burt, including, without limitation, information regarding Burt products, the development status of the System, the functionality of the System, the appearance, content and flow of the System’s screens, the method and pattern of user interaction with the System, and the content displayed on the user interface of the System. Licensee shall not disclose such trade secrets and confidential information, and it shall not permit any third party, nor any employee, representative or agent thereof that develops, markets or licenses computer programs with functionality similar to any Burt product, the functionality of the System, to have access to the System or to any trade secrets and confidential information therein. With regard to trade secrets and confidential information that is not generally known to the public and which gives an advantage to Burt over competitors who do not know of or use such information, the restrictions and obligations of this Paragraph shall survive in perpetuity the termination of this Agreement, or until such information becomes generally known through independent discovery. This Agreement imposes no obligation upon Licensee with respect to trade secrets or confidential information which: (i) was in the possession of, or was known by, Licensee without an obligation to maintain its confidentiality prior to its receipt from Burt, (ii) is or becomes generally known to the public without violation of this Agreement by Licensee, (iii) is obtained by Licensee from a third party who has the lawful right to make such disclosure, without an obligation to keep such information confidential; or (iv) is independently developed by Licensee without use of the System or any other trade secret or confidential information received from Burt.
7. Monitoring. Licensee acknowledges that, for the protection of the System and Burt’s rights therein, Burt may employ stealthy technology which, without limitation, enables Burt to monitor Licensee’s access and use of the System and to remotely control and disable the System. Licensee consents to and waives any claim Licensee may have against Burt or its agents in connection with the use of such technology.
8. Exclusion of Warranties. THE SYSTEM IS PROVIDED TO LICENSEE “AS IS,” AND ANY USE BY LICENSEE OF THE SYSTEM WILL BE AT LICENSEE’S SOLE RISK. BURT MAKES NO WARRANTIES RELATING TO THE SYSTEM AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION OF WARRANTIES MAY NOT APPLY TO LICENSEE. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
9. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL BURT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO LICENSEE’S USE OR INABILITY TO USE THE SYSTEM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF BURT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO LICENSEE. In no event shall Burt’s total liability to Licensee for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
10. Remedies. Licensee agrees that, in the event of a breach of the confidentiality obligations or of Burt’s intellectual property rights in the System, damages could not adequately compensate Burt and that Burt would be irreparably injured. Accordingly, Licensee hereby agrees and consents that, in the event of any breach or violation of the confidentiality obligations or of Burt’s intellectual property rights in the System, Burt may obtain injunctive relief to prevent a continued violation and may obtain ex parte, a temporary restraining order and temporary and permanent injunctions against Licensee without necessity of advance notice to the Licensee or the posting of a bond or other security. The foregoing shall not limit Burt in the pursuit of other remedies it may have, e.g., damages. Licensee hereby expressly waives all claims for damages by reason of the wrongful issuance of any such injunction, whether it be in the form of a temporary restraining order or temporary or permanent injunction.
12. Governing Law, Jurisdiction and Venue. This Agreement is governed by the law of the State of Colorado, without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. In any legal action or proceeding, jurisdiction and venue over any dispute relating to or arising out of this Agreement shall lie exclusively with a court having appropriate jurisdiction in Colorado.
13. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions of this Agreement shall not in any way be affected or impaired. 14. Complete Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject matter hereof, and supersedes completely all negotiations, discussions, advertising and prior agreements, oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be amended, modified or changed, nor shall any waiver of any provision hereof be effective, except by an instrument in writing and signed by an authorized representative of Burt.