|End User License Agreement |
DIABETESBALANCE.COM (SERVICE PROVIDER)|
END USER SOFTWARE LICENSE AGREEMENT
Terms & Conditions
|PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. YOUR ACCEPTANCE OF THIS AGREEMENT BY CHOOSING THE "accept"
BUTTON SIGNIFIES YOUR AGREEMENT. SERVICE PROVIDER LICENSES THE SOFTWARE TO YOU BASED UPON YOUR ACCEPTANCE OF THE TERMS OF THIS
AGREEMENT. REGARDLESS OF HOW YOU ACQUIRE THE SOFTWARE (ELECTRONICALLY, PRELOADED, ON MEDIA OR OTHERWISE), BY USING IT YOU
AGREE TO THESE TERMS. If you do not agree to these terms, promptly delete and destroy all copies of the Software and
related documentation in your posSession. SERVICE PROVIDER's willingness to license you the Software is expressly conditioned on your acceptance
of all of the terms of this Software License Agreement.
I. License Subject to the terms and conditions of this Agreement, including, without limitation,
the terms and conditions set forth below in Section II "Versions of the Software", SERVICE PROVIDER grants to you a non-exclusive,
non-transferable, non-assignable right, under the applicable copyrights and other intellectual property rights, to use the
Software pursuant to the terms and conditions hereof.
II. Versions of the Software The Student Curriculum Software is available for use or access in four
ways which, for purposes of this Agreement, shall be designated as versions of the Software as follows: (i) the Standalone
Version, (ii) the Network or LAN (Local Area Network) Version, (iii) the District Portal Version, and (iv) the Subscription
or On-line Version. The Professional Development Software is available for use as an On-line Subscription.
Each of the above Versions of the Software is subject to the applicable terms and conditions of this Agreement.
UPON ORDERING, DOWNLOADING, INSTALLING OR USING ANY VERSION OF THE SOFTWARE, YOU ARE REAFFIRMING THAT YOU AGREE TO
BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
III. License to Use
Standalone Version If you have licensed the Standalone Version of the Software, subject to the
terms and conditions of this Agreement, SERVICE PROVIDER grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to
install one copy of the Standalone Version of the Software on a single physical workstation or CPU and use that copy of the
Standalone Version of the Software only in accordance with this Agreement. The Standalone Version of the Software may only
be used by a single person at any given time.
Network or LAN Version If you have licensed the Network or LAN Version of the Software, SERVICE PROVIDER hereby grants you
a limited, non-exclusive, non-transferable, non-sublicenseable license to use the Software on the designated number of workstations
or CPUs identified in the order document ("Licensed Quantity") at the site that you have identified in the order document as
part of the curriculum and educational programs offered to students enrolled at the school and pursuant to the terms and conditions
hereof. If the number of workstations or CPUs using Software at the site increases above the Licensed Quantity,
you must inform SERVICE PROVIDER of the amount of the increased quantity and make the appropriate additional payment to SERVICE PROVIDER immediately.
District Portal Version If you have licensed the District Portal Version of the Software, SERVICE PROVIDER hereby grants
you a district-wide, non-exclusive, non-transferable, non-sublicenseable license to use the Software on the designated workstations or CPU's
identified in the order document as part of the curriculum and educational programs offered to students enrolled in the school district,
and to their parents from their homes, and pursuant to the terms and conditions hereof.
Subscription or On-line Version If you have purchased a subscription, SERVICE PROVIDER hereby grants you a limited,
non-exclusive, non-transferable, non-sublicenseable license to access and use the licensed curriculum modules identified in the
confirmation e-mail which details your order ("Confirmation") for the period that is listed in the Confirmation. The number of
users identified in the Confirmation ("Users") may access and use the licensed curriculum modules solely via the SERVICE PROVIDER site or
State of Mississippi Department of Education Site and a secure Internet connection. SERVICE PROVIDER will provide you with the appropriate
quantity of usernames and passwords for each User. You will not have the right to grant access to the licensed curriculum modules
to any persons other than the Users (if any). The right to access will not include the right to reproduce the licensed curriculum modules
in any manner, or to reproduce or alter the object code contained therein, or to access the data of any third party.
Your (and any additional Users') access shall be limited to information and portions of databases relating solely to the licensed
curriculum modules. You agree to provide a technical environment for the appropriate access to and use of the licensed curriculum
modules. You acknowledge that SERVICE PROVIDER is not responsible for obtaining or selling to you the hardware, Internet access, or
any standalone or third party software that may be required to meet such standard system requirements. You agree that from time
to time access to the licensed curriculum modules may be inoperable or inaccessible for any reason, including, without limitation:
(i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which SERVICE PROVIDER may undertake from time to time; or
(iii) causes beyond the reasonable control of SERVICE PROVIDER or which are not reasonably foreseeable by SERVICE PROVIDER. The availability of the licensed
curriculum modules shall be no less than 98% averaged over a 90-day period (the "Service Level"). Such availability excludes any
downtime due to scheduled maintenance, requests by you or your actions or inactions, partial or total Internet outages and other events
beyond SERVICE PROVIDER's reasonable control. For every 1% the availability of the licensed curriculum modules is less than the Service Level in
such 90-day period, SERVICE PROVIDER shall credit your account with 1% of the subscription fees paid hereunder. THE REMEDY LISTED ABOVE SHALL BE
YOUR SOLE AND EXCLUSIVE REMEDY, AND SERVICE PROVIDER'S SOLE AND EXCLUSIVE OBLIGATION, FOR ANY BREACH RELATING TO THE PROVISION OF SUBCRIPTION ACCESS
OR SERVICES HEREUNDER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, THE SUBSCRIPTION ACCESS IS PROVIDED ON AN "AS IS" BASIS.
SERVICE PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
SERVICE PROVIDER DOES NOT WARRANT THAT THE SUBCRIPTION ACCESS OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
All licenses granted hereunder are subject to the payment of the applicable fees as set forth in Section IX.
THE SPECIFICS OF THE SOFTWARE PROGRAMS BEING PURCHASED ARE DETAILED IN ATTACHMENT A.
The Software and documentation are protected by the copyright laws of the United States and international treaty provisions.
There are severe penalties, both civil and criminal, for copyright infringement. You may not: (i) disclose the results of
Software performance benchmarks to any third party without SERVICE PROVIDER's prior written consent, (ii) re-distribute the Software or related
documentation in any manner without the prior written consent of SERVICE PROVIDER, or (iii) download the Software under more than one user-name except
as expressly provided herein. Except for the Subscription Version, you may make and install copies to support the level of use
licensed, providing you reproduce the copyright notice and any other legends of ownership on each copy, or partial copy, of
the Software. You agree to ensure that anyone who uses the Software does so only in compliance with the terms of this Agreement.
Without limiting the generality of the foregoing, you do not receive any rights to any patents, copyrights,
trade secrets, trademarks or other intellectual property rights to the Software or related documentation. You may
not alter, merge, modify, adapt or translate the Software or related documentation, or decompile, disassemble or
reverse engineer the Software or documentation or otherwise reduce the Software to a human-perceivable form. You
shall not use the Software to develop a competing product. You may not remove or alter any trademark, logo,
copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not
authorize you to use SERVICE PROVIDER's name or any of its trademarks.
IV. Shipping/Delivery SERVICE PROVIDER shall deliver the Software to you in CD-ROM or other comparable electronic
media, or online through the SERVICE PROVIDER Internet Site. Should you wish to qualify for tax exempt sale, you will provide your
sales tax exemption numbers to SERVICE PROVIDER before ordering Products. You will submit an online or a written order. All orders
shall be subject to acceptance by SERVICE PROVIDER. SERVICE PROVIDER will accept your order by allowing the download or shipping the ordered
Products to such location as you designate. A Product becomes subject to this Agreement when SERVICE PROVIDER accepts your order.
SERVICE PROVIDER will use reasonable efforts to meet your requested delivery dates but shall not be liable for any damages to you or
a third party caused by SERVICE PROVIDER's delay or error in filing, or failure to fill, any orders for any reason. The terms and
conditions of this Agreement shall apply to all orders you submit and supercede any different or additional terms on
any form you submit. You will select the method of transportation and pay for shipment to your location. You shall
inspect all Products immediately upon delivery and shall notify the common carrier and SERVICE PROVIDER within 5 days of, and will
cooperate with SERVICE PROVIDER to reconcile, differences between the shipping manifest and Products received.
V. Verification In order for SERVICE PROVIDER to verify your compliance with this Agreement, you shall grant
SERVICE PROVIDER access (including computer password access) to any facility where you maintain or access the Software.
Such access will be granted during regular business hours on at least five (5) business days prior request by SERVICE PROVIDER,
and provided that you shall only be obligated to grant access no more than once per year.
VI. Term and Termination The term of your license shall be identified in either the order document or the confirmation. SERVICE PROVIDER may terminate your license to the Software at any time if you fail to comply with all the terms and conditions of this Agreement. Any use of the Software by you after termination shall be an infringement of SERVICE PROVIDER's rights in and to the Software. Accordingly, upon termination of this Agreement: (i) All licenses and other rights granted to you under this Agreement will become null and void, terminating coincident with the effective date of termination of the Agreement; (ii) You shall immediately, at SERVICE PROVIDER's option, either return all copies of the Software, user manuals, and related materials to SERVICE PROVIDER or destroy the original and all copies and parts thereof and provide SERVICE PROVIDER with written certification of such destruction. Should this Agreement be terminated for any reason except for material breach by SERVICE PROVIDER, all license and subscription fees shall be non-refundable except for any professional services fees for services which have not yet been performed.
VII. Warranty and Remedies For the Network and Standalone Versions, SERVICE PROVIDER warrants that the physical
media and the documentation will be free from defects in materials and workmanship under normal use for 90 days from
the date of delivery to you. SERVICE PROVIDER also warrants that the Software will be free from significant defects that prevent
the Software from performing substantially in the manner described in the applicable Software documentation for a
period of 90 days from the date of delivery to you. At SERVICE PROVIDER's option, provided that any non-compliance with the
above warranty is reported in writing to SERVICE PROVIDER no more than ninety (90) days following delivery to you, SERVICE PROVIDER will (i)
replace defective media or documentation, as the case may be, (ii) use reasonable efforts to correct significant
defects in the Software without charge, or, if (i) and (ii) are not commercially feasible then, (iii) refund the
licensee fee or the applicable portion of the subscription fee paid to SERVICE PROVIDER for the applicable copy of the Software
in exchange for termination of all licenses granted to you for such copy. Any replacement Software will be warranted
for the remainder of the original warranty period or 30 days, whichever is longer. THESE REMEDIES ARE THE SOLE AND
EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, PROMISES, CONDITIONS OR GUARANTEES,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2 OF THE UCC WILL BE CONFERRED ON YOU
UNLESS EXPRESSLY GRANTED HEREIN. IF APPLICABLE LAW IMPLIES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES
ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. NO ORAL OR WRITTEN INFORNMATION OR ADVICE GIVEN BY
SERVICE PROVIDER SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANY. THE EXCLUSION ALSO APPLIES TO ANY OF SERVICE PROVIDER'S
SUBCONTRACTORS, SUPPLIERS OR PROGRAM DEVELOPERS (COLLECTIVELY CALLED "SUPPLIERS").
(USA ONLY) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE WARRANTY LANGUAGE ABOVE MAY
NOT APPLY TO YOU. IN SUCH CASE, SERVICE PROVIDER'S LIABILITIES SHALL BE LIMITED BY THE PROVISION BELOW ENTITLED "LIMITATION ON
The warranties do not cover damage or defects caused by or related to misuse, modification, accident, negligence
or misapplication. Any such misuse, modification or misapplication of the Software will void this warranty.
Because programs such as this are inherently complex, SERVICE PROVIDER does not warrant that the Software is error-free or will
operate without interruption. Furthermore, SERVICE PROVIDER does not warrant that the Software will work with any given database,
network or network application.
VIII. Technical Support and Training Services
A. Hot-line support shall be provided to you free of charge for the licensed curriculum modules for the term of such license. You may order additional technical support or assistance from SERVICE PROVIDER at then-current prices.
B. Training in the use and application of the Software may be obtained from SERVICE PROVIDER and will be provided at a daily charge to you based on SERVICE PROVIDER's then-current training rates. ALL DETAILED SERVICES ARE OUTLINED AND PRICED IN EXIBIT B.
IX. Invoicing and Payment All fees shall be calculated based upon SERVICE PROVIDER's prices in effect at the time of any quote or order, as applicable. All fees shall be payable by you and shall be deemed overdue if they remain unpaid thereafter. You agree to pay applicable shipping charges, if applicable. If your procedures require you to issue a purchase order, all purchase orders or ordering documents shall be governed by the terms of this Agreement. In no event shall the terms of any purchase order you issue to SERVICE PROVIDER be given any force or effect to the extent they are inconsistent with this Agreement. The fees for the Software listed on an order document do not include any taxes.
X. Limitation of Liability IN NO CASE SHALL SERVICE PROVIDER OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES OR LOSS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH OF EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THIS IS TRUE EVEN IF SERVICE PROVIDER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL SERVICE PROVIDER'S LIABILITY UNDER ANY LEGAL THEORY EXCEED THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID BY YOU TO SERVICE PROVIDER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(USA ONLY) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
XI. Basis of the Bargain You acknowledge that SERVICE PROVIDER has set its fees and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that such limitations are an essential basis of the bargain between the parties.
XII. Publicity SERVICE PROVIDER may use the existence of this Agreement with you to promote its products, and may use quotes from your officials, upon receiving their consent, to promote the Software. SERVICE PROVIDER may identify you in a serial list of users of its Software, provided that such list, when taken in context, does not imply your endorsement of SERVICE PROVIDER's products and/or services.
XIII. Dispute Resolution This Agreement shall be governed by and construed in accordance with the substantive laws of the State of California without regard to its principles governing conflicts of law. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall, in the Award, allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees and costs of the prevailing party.
XIV. General This Agreement is the complete agreement between you and SERVICE PROVIDER concerning the Software and related documentation and supersedes all proposals, oral or written, all negotiations, conversations or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of SERVICE PROVIDER to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, which provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
If you have any questions concerning the Software or related documentation, you may contact SERVICE PROVIDER's customer service.
|Subject to Change without notice.|