The following is our standard software license and covers our hosting service. Be sure to read this information carefully as it outlines both our responsibilities and those of subscribers to our service.
ClearLearning, Inc. License Agreement for Test Pilot Software
IMPORTANT--READ CAREFULLY: This ClearLearning, Inc. License Agreement for Test Pilot ("Agreement") is a legal agreement between you (either an individual or a single legal entity) and ClearLearning, Inc. for the Test Pilot software product, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("Software "). By downloading, installing, copying, or otherwise using the Software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not install or use the Software; you may, however, contact ClearLearning, Inc. for a full refund.
Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect the Software. The Software is licensed, not sold.
1. GRANT OF LICENSE. This Agreement grants you the following rights:
- Software: You may install and use, during the Term of this Agreement, the Software on the number of network servers identified by you when you purchased this Software License to use Test Pilot. For the purpose of this Agreement, "Author" means you, if an individual, or if a "single legal entity", then persons employed or retained by you, who as part of their duties compose and administer tests and/or surveys. For the purpose of this Agreement, "Participant" means an individual to whom Authors administer tests or surveys.
- Storage/Network Use: You may also store or install a copy of the Software on a storage device, such as a network server, used only to install or run the Software on your other servers over an internal network: however, you must acquire and dedicate a license for each separate server or computer on which the Software is installed or run from the storage device. A license for the Software may be shared and used concurrently on different computers to the limit specified above.
- Concurrent use: You may permit Authors to install, on their personal computer, that portion of the Software which enables them to compose questions, tests and surveys.
- Maximum number of Participants: You are only licensed to store, at any moment in time, the details of no more than the number of Participants associated with the license fee you paid when you purchased this Software License to use Test Pilot. Notwithstanding this limitation the Participant details can change at any time, provided, however, that the maximum number is not exceeded.
- Exclusion for Commercial Use: Notwithstanding the foregoing, you are not licensed to use the Software to charge for delivering, taking or participating in tests or surveys, or for delivering feedback or calculating results. A separate agreement is required for such use, provided, however, that such use is permitted when you notify us in advance and revenues from such use are less than $3,000 per calendar year.
- Term: This License is perpetual for the major version purchased beginning on the date you receive download or access codes from ClearLearning.
- Hosting Services: If you are a subscriber to our Hosting Services, the Terms and Conditions of this License Agreement and Appendix A apply to you. Please read Appendix A carefully.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
- Educational User: If the license fee paid by you was identified as "Educational", you must be a "Qualified Educational User" to use the Software. Qualified Educational Users include public and private schools, colleges and universities that do not restrict acceptance on the basis of race, ethnic origin, previous or current employer and are not closely affiliated with companies that provide more than 75% of students to the Universities. Therefore, for example, organizations, sometimes known as Universities, but set up by companies to further the education of their employees do not qualify as Educational Users. If you are not a Qualified Educational User, and have paid an Educational license fee, you have no rights under this Agreement to use the Software.
- Assignment: Neither this Agreement nor any rights hereunder may be assigned, sublicensed or otherwise transferred, in whole or in part, by you.
- Limitation on reverse Engineering, Decompilation, and Disassembly: You may not reverse engineer, decompile, or disassemble the Software.
- Rental: You may not rent, lease, lend or otherwise transfer for value the Software.
- Support Services: ClearLearning may provide you with support services related to the Software ("Support Services"). Use of Support Services is governed by the ClearLearning policies and programs described on its web site in "online" documentation, and/or in other ClearLearning provided materials. Any supplemental software provided to you as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this Agreement. With respect to technical information you provide to ClearLearning as part of the Support Services, ClearLearning may use such information for its business purposes, including but not limited to product support and development. ClearLearning shall not be obligated to provide Support Services during any period during which an annual license is not paid by Licensee or offered by ClearLearning.
- Termination: Without prejudice to any other rights, ClearLearning may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement or fail to pay ClearLearning's invoice for this Software. In such event, you must destroy all copies of the Software and all of its component parts.
- Upgrades: If the Software is labeled as an upgrade, you must be properly licensed to use a product identified by ClearLearning as being eligible for the upgrade in order to use the Software. Software labeled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this Agreement. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
- Copyright: All title and copyrights in and to the Software (including, but not limited to, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by ClearLearning and/or its suppliers. Copyright laws and international treaty provisions protect the Software. Therefore, you must treat the Software like any other copyrighted material. You may not copy the printed materials accompanying the Software.
- Dual-Media Software: You may receive the Software in more than one medium. Regardless of the type or size of medium you receive, you may use only one medium that is appropriate for your computer. You may not use or install the other medium on another computer. You may not loan, rent, lease, or otherwise transfer the other medium to another use.
- Intended beneficiary: ClearLearning, its suppliers and Licensors are the intended beneficiaries of this Agreement and shall have the right to enforce it on their own behalf and in their name.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is ClearLearning, Illinois, USA.
LIMITED WARRANTY. ClearLearning warrants that (a) the Software will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of receipt, and (b) any Support Services provided by ClearLearning shall be substantially as described in applicable written materials provided to you by ClearLearning, and ClearLearning support engineers will make commercially reasonable efforts to solve any problem issues. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days.
CUSTOMER REMEDIES. ClearLearning and its suppliers' entire liability and your exclusive remedy shall be, at ClearLearning's option, either (a) return of the price paid, if any, or (b) repair or replacement of the Software that does not meet ClearLearning's Limited Warranty and that is returned to ClearLearning with a copy of your receipt. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by ClearLearning are available without proof of purchase from an authorized source.
NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ClearLearning AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ClearLearning OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ClearLearning HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ClearLearning'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S. $5.00; PROVIDED, HOWEVER, IF YOU HAVE ENTERED INTO A ClearLearning SUPPORT SERVICES AGREEMENT, ClearLearning'S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
This Agreement is governed by the laws of the State of Illinois. Should you have any questions concerning this Agreement, or if you desire to contact ClearLearning for any reason, please contact ClearLearning.
Appendix A - ClearLearning Hosting Services
1. Hosting Services. The hosting services are limited to providing access to an Internet web server, at a location selected by ClearLearning, for the purpose of hosting Licensee's online assessments and associated materials (the "Content") with ClearLearnings Test Pilot software. As part of the hosting services, ClearLearning will provide initial configuration of an assessment index providing the Licensee with suitable access to Test Pilot software for the creation of and access to the Content. Additional importing, customization or system management services are not included in the hosting services and must be negotiated with ClearLearning as a separate agreement. Licensees use of Test Pilot is governed by the License Agreement and this Appendix A.
2. Compliance with Laws. Licensee will use ClearLearning's hosting services and facilities in a manner that does not violate any applicable law or regulation. In particular, and without limiting the foregoing, Licensee will comply with the requirements of the Communications Decency Act ("CDA"), and the Digital Millennium Copyright Act ("DMCA").
3. Agreement Not to Post Unlawful Material. Licensee is prohibited from storing, distributing or transmitting any unlawful material through the hosting services provided hereunder. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. Licensee may not post, upload, or otherwise distribute copyrighted material as a result of the hosting services provided hereunder without the consent of the copyright holder. The storage, distribution, or transmission of unlawful materials could subject Licensee to criminal as well as civil liability, in addition to the actions further outlined in this Agreement.
4. Licensee's Use. The hosting services are provided for Licensee's use only pursuant to the terms of the License Agreement and this Appendix. Licensee may not provide access to any third party outside Licensees organization. Licensee may not transfer any connections, nor resell any of the hosting services to any third party. ClearLearning may engage subcontractors to perform the hosting services. Licensee acknowledges that Licensees use of the hosting services may be limited by the amount of storage space made available to Licensee as stated in the description of services related to the fee paid by Licensee for the
5. Assessments Content. Licensee will supply all text, pictures, sound, graphics, video and other data for the Content, and ClearLearning will have no obligation to supplement, modify, alter, review, monitor, screen or edit any of the Content at any time. ClearLearning may, in its sole discretion, delete or alter any Content it reasonable deems to violate this agreement. Licensee agrees that ClearLearning will have no obligation to provide backup storage for Licensees content.
6. Right to Suspend Services. ClearLearning reserves the right to investigate any suspected violation of this Agreement. When ClearLearning becomes aware of possible violations, ClearLearning may initiate an investigation that may include gathering information from Licensee, the end-user(s) involved and the complaining party, if any, and the examination of the Content on any servers in ClearLearning's control. During the investigation, ClearLearning may suspend Licensee, the end-user(s) involved and/or remove the material involved from such servers. If ClearLearning believes, in its reasonable discretion, that violation of this Agreement has occurred, it may take responsive action. Such action may include, but is not limited to, permanent removal of the material involved from such servers, warnings to the end-user(s) responsible, and the suspension or termination of the hosting services hereunder. Services may also be suspended without notice by Licensees failure to make any payment due ClearLearning
7. Remedy. In the event that ClearLearning provides the hosting services on the terms set forth in a manner that significantly affects the performance of the assessments and Licensee so notifies ClearLearning with a written report of such failure via email to support@ClearLearning, ClearLearning's sole obligation shall be to use commercially reasonable efforts to correct such failure promptly. EXCEPT AS EXPRESSLY PROVIDED, THE HOSTING SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND ClearLearning DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ClearLearning DOES NOT WARRANT THAT THE HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT LICENSEES CONTENT OR ANY OTHER DATA WILL BE PRESERVED OR PROTECTED IN ANY MANNER. LICENSEE AGREES THAT IT IS LICENSEES SOLE OBLIGATION TO MAINTAIN ADEQUATE BACKUPS OF ITS CONTENT AND OTHER DATA.
8. Security. ClearLearing.com will provide Licensee with a password with which to access the Services. Licensee acknowledges and agrees that no other security or secure environments are offered by ClearLearning.
9. Discontinuation of Hosting Services. ClearLearning may discontinue providing the hosting services to Licensee, without prior notice or liability to Licensee for any conduct which ClearLearning, in its reasonable discretion, believes violates this Agreement or is otherwise harmful to ClearLearning's interests, or those of other ClearLearning customers and affiliates. If the hosting services are terminated for any reason, ClearLearning shall provide Licensee with the information contained in Licensee's Content, by electronic transmission, provided however, that such information is available, has not been deleted and is not the subject of any disagreement between Licensee and any other party, including ClearLearning
10. Indemnification by Licensee. Licensee agrees to indemnify and hold harmless ClearLearning, its affiliates, officers, agents, directors, and employees, against any and all claims, actions, proceedings, expenses, damages and liabilities (including but not limited to any governmental investigations, complaints and actions) and reasonable attorneys' fees, arising out of or in connection with (a) any breach or alleged breach of this Agreement by Licensee, including its representations, warranties and covenants, or (b) any claim arising out of the operation of the "Content" (including, without limitation, anyaction for personal injury, death or other cause of action involving product liability and any action for infringement or violation of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the "Content"). ClearLearning will give Licensee prompt notice of any claim for which it is seeking indemnification.
11. TERM. Licensee may have access to the hosting services and content only for the term set forth in its payment schedule and only for so long as payment has been made. Failure to make any payment when due will result in immediate loss of service.