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IGNITE! CURRICULUM SUBSCRIPTION END USER SOFTWARE LICENSE AGREEMENT
Please read this Agreement carefully.
By installing and accessing the Software, you consent and agree with this Agreement. If you do not agree, do not install or continue to access or use the Software. This Ignite! Curriculum Subscription End User Software License Agreement ("Agreement") entered into with Ignite! Learning, Inc. and you and/or the educational institution affiliated with you, which you hereby represent that you are authorized to bind (hereafter, together referred to as "You") specifies the Agreement between the parties. By accessing the Software and/or authorizing any other person to access such Software, You and such other persons accept the terms and conditions of this Agreement along with details specified in the signed quote, invoice, proposal, purchase order or other documents regarding the acquisition of Ignite!'s Software. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MUST NOTIFY IGNITE!
IMMEDIATELY AND RETURN YOUR PURCHASE TO IGNITE!. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISON.
1. The Product. The Product consists of all of the Ignite! ION(s) listed on the invoice that is delivered to you and includes the media content and software as defined below included in the ION installation disks, memory sticks or downloaded on your client-server pursuant to this Agreement.
2. Payment Terms. Unless specifically agreed to otherwise in writing, payment is due within 20 days of receipt of invoice. Payment shall be made in U.S. dollars. If payment is not made when due, Ignite! may, in its sole discretion, in addition to other remedies, withhold all support, technical services and suspension of this license.
3. Shipping Charges; Taxes; Risk of Loss. Shipping and handling are included unless otherwise expressly indicated at the time of sale. Loss or damage that occurs during shipping by a carrier selected by Ignite! is Ignite!'s responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify Ignite! within 20 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged. Shipping dates are estimates only.
4. License; Title.
(a) License. Subject to payment of license fees, the Software made available under this Agreement is licensed, not sold, to You by Ignite! by grant of a limited, revocable, non-transferable, non-exclusive subscription license. Access to use the Ignite! proprietary curriculum program, including the Software, and any modifications or replacements thereof provided to You may be granted to teachers and students only for the number of users and specified sites as set forth in the related proposal, quote or other documents. You may not sell, sublicense, distribute or create derivative works of the Software.
(b) Definition. "Software" includes all, but is not limited to the ION software system, media content contained in the ION installation media, digitized printed materials, related documentation and other materials delivered to You. (c) Title. Title to or ownership of the Software will remain with Ignite! or its licensor(s). No title to the Software will pass to You. Ignite! reserves all rights not expressly granted to You.
(d) License Restrictions. You agree to strictly limit access only to the specified sites and number of users allowed and will exercise best practices not to share logins or passwords. You shall not provide, allow access or otherwise make available the Software or any part or copies thereof in any form to any third party. You are prohibited from modifying, reverse engineering, decompiling, disassembling or creating derivative works of the Software or any subsequent enhancement for any reason whatsoever. Any violation of this provision may result in immediate termination of this Agreement without notice and entitle Ignite! to pursue any and all remedies against you, including equitable relief. Ignite! reserves the right to audit compliance with this Agreement.
5. Annual Subscription and Technical Support for Software. Ignite! will provide from the date of shipment for one year access to Ignite!'s service desk and updates of the Software along with other generally available technical material at no additional cost. These maintenance materials including the Software may not be used to increase the number of versions or copies of the Software. You agree not to use or transfer the prior version but to destroy or archive the prior version of the Software. All patches, updates and releases shall be subject to this End User License Agreement. On each annual anniversary date, Ignite! will invoice and you agree to pay the Annual Software Subscription License Fee and Technical Support Fee, unless otherwise agreed to in writing. If the Annual Software Subscription License Fee and Technical Support Fee are not remitted when due, certain components of the software will be disabled. Payment of the annual fee is required to reactivate such components. Support provided under this Agreement shall not include (i) operating supplies or accessories; (ii) service due to failure of software not supplied by Ignite!; (iii) service provided when the reported problem is caused by network, hardware, firmware or media not supplied by Ignite!, by operator error, by negligence or improper use of the Software.
6. Term & Termination. The term of this agreement automatically renews on each anniversary date (one year from the date of invoice to YOU) and the Annual Software Subscription Fee will be due and payable on each anniversary date. If the fees are not paid when due, You will immediately cease using the Software and remove the installation of all Software from all computers and devices.
7. Training & Professional Development. Any training or professional development purchased must be scheduled at least two weeks in advance. As a condition to receiving any training & professional development, it is the sole responsibility of You to ensure the proper installation and deployment of the Software as well as distribution of all related materials to all attendees before any training commences. Any Training or Professional Development services not utilized within one year of purchase shall expire and no credit will be given. Any cancellation of services not made within 5 business days of scheduled Training & Professional Development will result of forfeiture of services purchased.
8. WARRANTY. IGNITE! WARRANTS TO YOU THAT THE PRODUCT SHALL BE IN GOOD WORKING ORDER ON THE DATE OF DELIVERY PROVIDED THE PRODUCT IS UTLIZED IN ACCORDANCE WITH IGNITE!'S HARDWARE REQUIREMENTS AND THAT THE PRODUCT SHALL BE FREE FROM MANUFACTURING DEFECTS IN MATERIAL AND WORKMANSHIP AT THE TIME OF DELIVERY AND, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 5 HEREIN, FOR A PERIOD OF NINETY (90) DAYS THEREAFTER.
IGNITE! DOES NOT WARRANT OR GUARANTEE THE OPERATION OF THE SOFTWARE TO BE UNINTERRUPTED OR ERROR-FREE. IGNITE! DOES NOT MAKE ANY WARRANTY OR REPRESENTATION REGARDING THE USE OF THE SOFTWARE IN TERMS OF ACCURACY, RELIABILITY OR OTHERWISE. IGNITE!'S OBLIGATIONS UNDER THE WARRANTY IN THIS SECTION 8 SHALL BE LIMITED SOLELY TO IGNITE! MAKING, AT ITS COST AND EXPENSE, SUCH REPAIRS AND REPLACEMENTS AS ARE NECESSARY TO PLACE THE PRODUCT IN GOOD WORKING ORDER. IGNITE! will undertake reasonable efforts to provide technical assistance under this Agreement and to rectify or provide solutions to problems where the Software does not function as described in the Software documentation. Ignite!'s sole responsibility will be to use reasonable efforts to correct any defect it deems necessary. NOTWITHSTANDING THE FOREGOING, THE WARRANTY PROVIDED HEREIN SHALL BE VOID IN THE EVENT (1) THE PRODUCT FAILS, MALFUNCTIONS OR IS DAMAGED AS A RESULT OF IMPROPER HANDLING, MAINTENANCE, REMOVAL, MODIFICATION OR REPAIR BY YOU OR A THIRD PARTY (NOT AUTHORIZED BY IGNITE!); OR (2) THE PRODUCT IS ACCIDENTALLY DAMAGED, ABUSED OR IMPROPERLY USED; OR (3) THE PRODUCT IS ALTERED OR DAMAGED SUCH THAT IGNITE! IS UNABLE TO VERIFY THE DEFECT WITH ITS NORMAL TEST EQUIPMENT; OR (4) THE PRODUCT OR ANY PART THEREOF IS LOST OR STOLEN. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR USE, PURPOSE OR SUITABILITY.
9. LIMITATION OF LIABILITY. IGNITE! SHALL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, WHETHER UNDER TORT, CONTRACT, OR ANY OTHER THEORY OF RECOVERY, EVEN IF IGNITE! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT IGNITE!'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO IGNITE! DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS PERIOD.
10. Indemnity. Ignite! will defend, at its expense, and indemnify and hold you harmless from and against any claim that the Product, or any portion thereof, infringes any trademark, trade secret, patent, copyright, or other proprietary right. You shall promptly notify Ignite! of any such claim, and Ignite! will promptly undertake the defense of such claim. If the Product, or any portion thereof, is found to be infringing as a result of a final adjudication, Ignite!, at its sole discretion, shall have the right to: (a) procure for you the right to continue use of the Product; (b) replace the Product with a noninfringing system; or (c) modify the Product so it becomes non-infringing; provided that, if (b) or (c) is the option chosen, your intended use of the Product is not impaired. Notwithstanding, if (a), (b), or (c) are unavailable as options to Ignite!, Ignite! shall refund to you the amounts you have paid to Ignite! hereunder.
11. Website Registration. To gain access to product registration and utilize on-line information services we may provide from time to time, you may be required to create a log-in ID and password. You are responsible for all activity occurring under your Log-In Information and You must keep your Log-In Information confidential and not share your Log-In Information with third parties. Ignite! has no obligation or responsibility with regard to your use, distribution, disclosure or management of Log-In Information. Notwithstanding the foregoing, Ignite! may require You to change your Log-In Information.
12. Storage and Use of Information. Ignite! may collect certain data regarding your use of the Software, such as curriculum viewed, media pieces used, Ignite! questions, time and date of use in order to evaluate and make improvements in future product releases. Ignite! may also make this data available to you if requested. While Ignite! has implemented technical safeguards and procedures to protect communication sent over the Internet, use of the Internet is subject to many factors outside of Ignite!'s control and, as a result, Ignite! does not guarantee the security or privacy of such communications.
13. Entire Agreement. Each party acknowledges that this Agreement and the documents incorporated by reference herein constitutes the complete and exclusive statement of the terms and conditions between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
14. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control. Your invocation of this clause shall not relieve you of your obligation to pay for the Product received.
15. Assignment. Ignite! may assign this Agreement or its obligations hereunder without your consent.
16. Notice. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if mailed, three (3) days after deposit in the U.S. mail, postage prepaid, certified mail return receipt requested.
17. No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
18. Severability. In the event that any provision of this Agreement or any obligation or grant of rights by either party is found invalid or unenforceable pursuant to a judicial decree or decision, any such provision, obligation or grant of rights shall be deemed and construed to extend only to the maximum permitted by law and the remainder of this Agreement shall remain valid and enforceable according to its terms.
19. Governing Law. This Agreement shall be governed by the laws of the State of Texas, without giving effect to its provisions on conflicts of laws.
20. ARBITRATION. IGNITE! AND YOU AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY ARISING FROM, RELATING TO OR RESULTING FROM THIS AGREEMENT (INCLUDING THE SERVICE PLAN) SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN AUSTIN, TEXAS.