1. LICENSE OF SOFTWARE
The Software and Database is licensed, not sold, to You for a period not to exceed one year after the effective date of this license. ExamMatrix grants You the single user, a nontransferable, nonexclusive license to use the Software and related Database solely for the following purposes:
(a) to operate the Software on one computer at a time to process the Database provided with the Software; and
(b) to make one copy of the Software for back-up purposes on a continuing basis.
ExamMatrix grants the nontransferable, nonexclusive license as follows based upon your invoice designation:
(a) Individual License – one nontransferable user for the duration of the license period;
Any copy of any Software and/or Database made by You will be the property of ExamMatrix and is subject to this Agreement. This license will terminate automatically if You use or permit the use of the Software and/or Database in any manner not permitted by this Agreement. In the event of such termination, You will immediately return to ExamMatrix or destroy all of the Package.
You will not: (i) modify any Software and/or Database other than for Your own use in accordance with this Agreement; (ii) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code to any Software; (iii) translate or create any derivative work based on any Software and/or Database; (iv) disclose, publish, sub-license, sell, lend, rent, lease, or transfer any Software and/or Database; (v) copy or reproduce any Software, except as permitted under (b) above; (vi) operate any Software to process data for anyone else; (vii) operate any Software on more than one computer at a time.
2. PROPRIETARY RIGHTS
The Software and Database involve valuable copyright, trade secrets, trademark, and other proprietary rights of ExamMatrix. ExamMatrix reserves all such rights. No title to or ownership of the Software and/or Database is transferred to You. You will not infringe, and will take appropriate steps for the protection of, such rights. You will not remove, obscure or alter any notice of copyright, trademark, trade secret or other proprietary rights relating to or appearing anywhere on any of the Package. ExamMatrix may at any time replace, modify, enhance, or otherwise change any of the Package. You will not authorize anyone else to do anything
prohibited by this Agreement.
3. LIMITED WARRANTIES AND REMEDIES
ExamMatrix warrants that upon delivery by ExamMatrix:
(a) the medium on which the Software and Database is furnished will be free from defects in materials and workmanship; (b) the Software and Database perform substantially in accordance with their specifications published by ExamMatrix; and (c) the Software and Database does not infringe any U.S. patent, copyright, trademark or mask work. ExamMatrix does not warrant that the Software is free from all bugs, errors and omissions. This warranty gives You specific legal rights, and You may also have other rights that vary from state to state. If any item of Software and Database fails to comply with the warranties set forth in (a) or (b) above, ExamMatrix will use reasonable efforts to correct the noncompliance (e.g., by furnishing a modification or replacement); provided that (i) You return the item together with a copy of Your paid invoice to ExamMatrix (c/o ExamMatrix Technical Support at the ExamMatrix address set forth in the documentation included in this Package) or to an authorized ExamMatrix dealer within the applicable Warranty Period and (ii) ExamMatrix is able to reproduce the noncompliance on the Computer for which the item was designed. If after the expenditure of such reasonable efforts ExamMatrix is unable to correct the noncompliance, ExamMatrix may refund You an equitable portion of the compensation paid by You for this Package, in which event such refund may be in full satisfaction of all Your claims relating to such noncompliance. If any of the Software and Database fails to comply with the warranty set forth in (c) above, ExamMatrix will defend and indemnify You against any claim asserted in any judicial proceedings against You based on such noncompliance, provided that You notify ExamMatrix of such proceeding promptly after You receive notice thereof, ExamMatrix has exclusive control over the defense and settlement of the proceeding, and You provide such assistance in defense and settlement (including compliance with any court order or settlement) of the proceeding as ExamMatrix may reasonably request. EXCEPT AS SPECIFICALLY SET FORTH IN THIS LIMITED WARRANTY, ExamMatrix, WILL HAVE NO OBLIGATION OR BE LIABLE FOR ANY: (A) BUG, ERROR, OMISSION, DEFECT, DEFICIENCY OR NONCONFORMITY IN ANY SOFTWARE, HARDWARE, OR DATABASE; (B) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AFTER EXPIRATION OF THE APPLICABLE WARRANTY PERIOD; (C) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE AFTER EXPIRATION OF THE APPLICABLE WARRANTY PERIOD; (D) CLAIM OF INFRINGEMENT; (E) CLAIM IN TORT WHETHER OR NOT ARISING IN WHOLE OR IN PART FROM ExamMatrix’s FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY; OR (F) CLAIM FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, COVER OR ANY LOSS OF DATA, PROFIT REVENUE OR USE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE AND FOLLOWING LIMITATIONS MAY NOT APPLY TO YOU.
4. UPDATE AND RENEWAL POLICIES
From time to time, ExamMatrix provides special updates, membership provisions, renewal policies and/or refund policies. Any such policy must be attached to this license as an Appendix and as such is incorporated to this Agreement as Your future rights.
5. LIMITATIONS OF LIABILITY
ExamMatrix’s liability (whether in tort, contract or otherwise; and notwithstanding any fault, negligence, strict liability or product liability of ExamMatrix) with regard to the Package will not in any event exceed the compensation paid by You for this package.
6. ENTIRE AGREEMENT
This Agreement and any attached Appendix constitutes the entire Agreement and supersedes any and all prior agreements between ExamMatrix and You with regard to the Software and Database and any other items contained in this Package. No amendment, modification, or waiver of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound thereby.
“ExamMatrix” means Matrix Learning Systems, Inc. “You” means, and “Your” refers to, any person or entity that acquires or uses this Package. “Computer” means a computer consisting of a single central processing unit, one keyboard, and one video display terminal. “Software” means the computer programs contained in this
Package (including, but not limited to, codes, techniques, software tools, formats, designs, methods, processes, know-how and ideas); any and all copies, modifications, upgrades, enhancements, and new releases thereof made or acquired by You. “Database” means all non-software disks provided with this Package and any and all manuals and other printed materials contained in this Package. “Package” means the Software, Database and other items accompanying this Agreement. “Warranty Period” means the period commencing on the date this Package is delivered to You by ExamMatrix or an authorized ExamMatrix dealer and ending 90 days thereafter.
8. U.S. GOVERNMENT RESTRICTED RIGHTS
This is Commercial Computer Software. Thus, the Federal Government only obtains the rights to use this Software and Database stated in this software license or in any addendum thereto.
48 C.F.R. 12.212; 48 C.F.R. 227.7202-3. The contractor/manufacturer is ExamMatrix, 8156 S Wadsworth Blvd, Unit E-307, Littleton, CO 80128.