End user agreement for English Language Desktop Edition
ENGLISH4TODAY DESKTOP EDITION
EVALUATION SOFTWARE LICENSE
BEFORE OPENING THE PACKAGE CONTAINING THE ENGLISH4TODAY DESKTOP EDITION ("ENGLISH4TODAY") SOFTWARE, CLICKING ON "ACCEPT OR "NEXT" DURING REVIEW OF THIS LICENSE, DOWNLOADING, INSTALLING OR USING THE SOFTWARE, PLEASE CAREFULLY READ THIS AGREEMENT, WHICH CONTAINS THE TERMS UNDER WHICH YOU ("LICENSEE") ARE ACQUIRING A LICENSE TO USE THE ACCOMPANYING ENGLISH4TODAY SOFTWARE. IF LICENSEE DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, PLEASE DO NOT OPEN THE ACCOMPANYING SOFTWARE, CLICK ON "ACCEPT" OR "NEXT", DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND PROMPTLY RETURN THE PROGRAM. IF LICENSEE OPENS THE ACCOMPANYING SOFTWARE, CLICKS ON "ACCEPT" OR "NEXT", DOWNLOADS, INSTALLS OR USES IT, LICENSEE WILL BE ACQUIRING A LICENSE TO USE THE ENGLISH4TODAY SOFTWARE PRODUCT IN OBJECT CODE FORM, INCLUDING ANY RELATED PRINTED OR ELECTRONIC DOCUMENTATION (COLLECTIVELY THE "PROGRAM"), ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, AND LICENSEE WILL BE CONSIDERED TO HAVE ACCEPTED AND AGREED TO THE TERMS OF THIS AGREEMENT.
"Effective Date" means, unless otherwise specified in the Agreement, the date upon which Licensee acquires a license to use the Program.
"Program" means the ENGLISH4TODAY software, in object code form only, and any related printed or electronic documentation.
"Workstation" means a computer workstation or personal computer that allows the Program to only be accessed by a single processor and that is not used as a network server.
2. Grant of License
(a) Subject to the terms of this Agreement, ENGLISH4TODAY grants to Licensee a non-exclusive, non-transferable, limited and restricted license as follows:
(i) to install and use the Program, solely for the purpose of Licensee's internal evaluation, on a single Workstation; and
(ii) to make one (1) additional copy of the Program in machine readable form for backup purposes only, provided Licensee include any and all ENGLISH4TODAY copyright notices or other designations that appear or may appear in or on the Program, without alteration or removal of any such copyright or other notice on the original copy of the Program.
(b) THE LICENSEE WILL NOT HAVE ACCESS, DURING THE TRIAL PERIOD TO ALL ENGLISH4TODAY ONLINE PREMIUM SERVICES ACCESS TO SOME SERVICES, FOR COPYRIGHT AND INTELLECTUAL PROPERTY REASONS, IS ONLY GRANTED WITH A FULL LICENSE. For use beyond Licensee's internal evaluation of the Program, Licensee will need to acquire a validly licensed copy of the Program.
Except as expressly authorized under this Agreement, Licensee is prohibited from doing any of the following things to the fullest extent permitted by law:
(a) sublease, lease, assign, sell, resell, license, re-license, distribute, rent, export, re-export, permit concurrent use of or grant other rights in the Program;
(b) demonstrate, test, examine, evaluate or otherwise use the Program in a live operating/production environment;
(c) provide use of the Program in a computer service business, third party outsourcing facility or service, service bureau arrangement, network, concurrent use arrangement, time sharing or interactive cable television arrangement to users who are not properly licensed by ENGLISH4TODAY;
(d) transfer this Agreement or any license to use the Program;
(e) translate, reverse engineer, modify, adapt, create derivative works, decompile, merge, separate or disassemble any part of the Program; and/or
(f) disclose the results of any benchmark test of the Program to any third party, without ENGLISH4TODAY's prior written approval.
The Program is licensed, not sold. All intellectual property rights, including all copyrights and patent rights, in and to the Program shall, at all times, remain with ENGLISH4TODAY or its licensors. Licensee shall acquire no right whatsoever to all or any part of the Program except the right to use the Program in accordance with the terms of this Agreement and ENGLISH4TODAY and its licensors reserve all rights not expressly granted to Licensee. Physical copies of the Program remain the property of ENGLISH4TODAY. Licensee must fully reproduce any copyright or other notice marked on any part of the Program on all authorized copies and must not alter or remove any such copyright or other notice.
5. Limited Warranty
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PROGRAM AND ANY ASSOCIATED SERVICES ARE PROVIDED BY ENGLISH4TODAY ON AN "AS IS" BASIS, AND THERE ARE NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR TERMS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, LACK OF VIRUSES, NON-INFRINGEMENT, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, LACK OF NEGLIGENCE AND/OR LACK OF WORKMANLIKE EFFORT. NEITHER ENGLISH4TODAY NOR ITS LICENSORS WARRANT THAT THE PROGRAM WILL BE ERROR FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. NO ENGLISH4TODAY AGENT, REPRESENTATIVE, OR DEALER IS AUTHORIZED TO MODIFY, EXTEND OR ADD TO THIS WARRANTY ON BEHALF OF ENGLISH4TODAY. THE WARRANTIES IN THIS AGREEMENT GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
6. Limitation of Liability
THE ENTIRE RISK, AS TO THE RESULTS AND PERFORMANCE OF THE PROGRAM, IS ASSUMED BY LICENSEE. TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), CONTRACT OR OTHERWISE, SHALL ENGLISH4TODAY OR ITS LICENSORS, INCLUDING THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF ENGLISH4TODAY OR ITS LICENSORS, INCLUDING THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES, IN ANY CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, WHETHER IN TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), CONTRACT OR OTHERWISE SHALL NOT EXCEED FIVE DOLLARS CANADIAN (CDN $5.00). THIS LIMITATION SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL BREACH OR A BREACH OF THE FUNDAMENTAL TERMS OF THIS AGREEMENT.
Subject to the terms and conditions of this Agreement, the license granted under this Agreement shall remain in effect until Licensee ceases all use of the Program and provides written notice to ENGLISH4TODAY of same. ENGLISH4TODAY may terminate this Agreement due to Licensee's failure to comply with any of the provisions of this Agreement if after thirty (30) days written notice such failure remains uncured. Upon termination by Licensee or ENGLISH4TODAY, Licensee agrees to promptly purge all copies of the Program from all computer systems on which it was stored.
8. U.S. Government End Users
The Program: (i) was developed exclusively at private expense; (ii) is a trade secret of ENGLISH4TODAY for all purposes of the Freedom of Information Act or its successor legislation or any other disclosure statute, regulation or provision; (iii) is "commercial computer software" subject to limited utilization (Restricted Rights); and (iv) including all copies of the Program, in all respects is and shall remain proprietary to ENGLISH4TODAY or its licensors. Use, duplication or disclosure by the U.S. Government or any person or entity acting on its behalf is subject to Restricted Rights and all applicable restrictions for software developed exclusively at private expense as set forth in: (i) for the DoD, the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or any successor clause, and (ii) for all government agencies, the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 or any successor clause. The U.S. Government must refrain from changing or removing any insignia or lettering from the Program or from producing copies of the Program and manuals (except one copy of the Program for backup purposes). Use of the Program shall be limited to the facility for which it is acquired. All other U.S. Government personnel using the Program are hereby on notice that use of the Program is subject to restrictions that are the same as, or similar to, those specified above.
9. Export/Import Restrictions
Licensee represents and warrants that (a) no relevant agency has suspended, revoked or denied Licensee's export and/or import privileges; (b) Licensee is not located in or under the control of a national or resident of, a jurisdiction where this transaction is prohibited; and (c) Licensee shall not, in any manner whatsoever, either remove, convey, export, import or transmit the Program from or to Licensee's jurisdiction in violation of the applicable laws and regulations.
10. Governing Law
This Agreement shall be governed by the laws of England, without giving effect to: (i) the principles of conflicts of law and that body of law applicable to choice of law; (ii) the United Nations Convention on Contracts for the International Sale of Goods, and/or its implementing and/or successor legislation and/or regulations; (iii) the Uniform Commercial Code and/or its implementing and/or successor legislation and/or regulations; and/or (iv) the Uniform Computer Information Transactions Act and/or its implementing and/or successor legislation and/or regulations, as applicable respectively. The parties agree that the courts of such jurisdiction constitute a convenient forum for any litigation and both parties attorn and submit to the jurisdiction of such courts. Except to the extent required by law, the parties waive trial by jury. Each party hereby agrees to comply with all applicable laws, regulations and government orders in performing its obligations under this Agreement.
Licensee may not transfer or assign this Agreement without the prior written consent of ENGLISH4TODAY. The parties agree that ENGLISH4TODAY is hereby entitled to assign and/or transfer all or part of its rights and obligations under this Agreement to any third party.
12. Entire Agreement
This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes and replaces all prior oral or written agreements, representations, negotiations or understandings between the parties relating to such subject matter. No change or modification to this Agreement shall be valid unless it is in writing and signed by a representative of both parties. No provisions in any purchase orders, or in any other documentation employed by or on behalf of Licensee in connection this Agreement, regardless of the date of such documentation, will affect the terms of this Agreement, even if such document is accepted by ENGLISH4TODAY, with such provisions being deemed deleted.
No party will be deemed to have waived the exercise of any right that it holds under this Agreement unless such waiver is made in writing. Failure or delay by either party to exercise any of its rights, powers or remedies hereunder shall not constitute a waiver of those rights, powers or remedies. The single or partial exercise of a right, power or remedy shall not prevent its subsequent exercise or the exercise of any other right, power or remedy.
Licensee agrees to indemnify and hold ENGLISH4TODAY and its licensors, including their respective affiliates, subsidiaries, officers, directors, employees, agents, or representatives, harmless against any and all third party proceedings, causes of action, suits, damages, losses, liabilities, costs and expenses (including legal fees) whatsoever that may arise, either directly or indirectly, in any connection with any act or omission on the part of Licensee, or its use of the Program.
The original of this Agreement has been written in English and Licensee waives any right it may have under the laws of Licensee's territory to have this Agreement written in any other language. Licensee represents that it has the ability to read and write in English and has read and understood this Agreement. All communications between the parties hereunder shall be in English. Les parties aux présentes ont exigé que cette entente et tous autres documents envisagés par les présentes soient rédigés en anglais.
ENGLISH4TODAY may, at its expense, appoint an independent third party to audit the number of copies of the Program in use by Licensee. If such audit shows that Licensee has breached and/or is breaching the terms and conditions of this Agreement, including without limitation if Licensee is using a greater number of copies of the Program than that number of licenses purchased by Licensee, Licensee shall pay any applicable fees, and, without limitation, any license fees, for such additional copies within thirty (30) days of invoice, with such underpaid fees being the license fees as per ENGLISH4TODAY's then-current, country specific, price list. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under this Agreement, then Licensee shall pay such underpaid fees and ENGLISH4TODAY's reasonable costs of conducting the audit.
Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Should any provision or part of any provision of this Agreement be found void or unenforceable by a court of competent jurisdiction, such provision, or part thereof, shall be deemed severed, and the remainder of this Agreement shall remain in full force and effect. The parties acknowledge and agree that the limited warranty, exclusive remedies and limited liability set forth in this Agreement are fundamental elements of the basis of the bargain between ENGLISH4TODAY and Licensee, and that ENGLISH4TODAY would not be able to provide the Program on an economic basis without such limitations. The provisions within this Agreement which are meant, by their nature, to survive termination of this Agreement shall survive such termination, including, without limitation, the ownership, limited warranty, limitation of liability, governing law, entire agreement, waiver, indemnity, and general sections herein. In this Agreement words importing a singular number only shall include the plural and vice versa. The division of this Agreement into sections and the insertion of headings are for convenient reference only, and shall affect neither the construction nor the interpretation of this Agreement.
All materials including text, images, animation, video, sound and any other graphic or multimedia document are copyright ENGLISH4TODAY and step52 and may not be used in any other application, website, or document, printed out or stored in any format including an electronic system, without specific written consent of ENGLISH4TODAY.
IF YOU DO NO UNDERSTAND ANY OF THE ABOVE OR HAVE A QUESTION OR WISH TO MAKE A SPECIFIC USE OF THE ENGLISH4TODAY DESKTOP EDITION PLEASE CONTACT US AT INFO@ENGLISH4TODAY.COM.
BY CLICKING ON THE 'NEXT' BUTTON BELOW, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CLICK 'CANCEL' AND YOU WILL NOT BE PERMITTED TO DOWNLOAD OR ACTIVATE THE PROGRAM. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR A THIRD PARTY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT AND ARE AUTHORIZED TO DO SO.