It is hereby understood, acknowledged, and agreed by You (the purchaser of the copy of the program and documentation with which this Single User License agreement (the "agreement") is packaged) that:
(i) LEARNKEY, Inc. ("LEARNKEY") and/or its suppliers, agents, and contractors, as applicable, is/are the exclusive owner(s) of all right, title and interest in and to the system, program, and documentation, and all works derived from the system, program, and/or documentation, wherein such right, title, and interest includes, but is not limited to, the rights provided by patent, copyright, trademark, trade secret, and trade dress laws, both domestic and international;
(ii) Notwithstanding any other provision of this agreement, LEARNKEY and/or its suppliers, agents, and contractors, as applicable, owns and retains all right, title, and interest in and to:
(a) any and all improvements, modifications or amendments that You make to the system, program, and/or documentation,
(b) any and all works prepared by You and/or at Your direction, and derived either in whole or in part from the system, program, and/or documentation, and
(c) any copies of the system, program, and/or documentation made by You, or caused or permitted to be made by You; and
(iii) You do not, by virtue of Your purchase and/or use of the system, program and/or documentation, as applicable, thereby acquire any ownership, rights, title, or interest, of any kind in the system, program, or documentation.
3. License.
In consideration of the payment of a license fee, LEARNKEY hereby grants to You a nonexclusive license to load and display any and all portions of this copy of the system, program and documentation on a SINGLE properly configured personal computer and to use this copy of the system, program, and documentation solely for computer systems certification elearning in accordance with the terms of this agreement.
The system, program and documentation may be displayed and used only by You. You may load, display, and use this copy of the system, program and documentation on a computer other than the computer on which the system, program and documentation were originally installed.
However, at no time shall any portion of the system, program or documentation be installed on more than a single computer. You may make a single archive copy of the program and documentation, provided however, that no portion of such archive copy shall be stored at any time on the hard drive of any computer. All rights not expressly granted in this agreement are hereby reserved by LEARNKEY.
4. Term and Termination.
LEARNKEY may, in its sole discretion, terminate this agreement if You fail to comply with any term or condition of this agreement. In such event, no notice shall be required by LEARNKEY to effect such termination. Such termination shall be without prejudice to any other remedy to which LEARNKEY may be entitled under applicable law, statute, or regulation.
5. Restrictions on your Use.
Your use of the system, program, and documentation shall, in all cases, be restricted as follows:
(i) You shall use the system, program, and documentation only for Your computer systems certification elearning, and You shall take all reasonable steps to protect the system, program, and documentation from any copying and/or use;
(ii) Except for the initial loading of the system, program and documentation, or for archival purposes as provided for elsewhere herein, You shall not, without LEARNKEY's prior express written consent
(a) Reproduce or otherwise copy, or cause or permit the reproduction or copying of, the system, program, or documentation in any way, shape or form, or
(b) Modify the system, program, or documentation, and/or merge them with any another software;
(iii) At no time shall the program or documentation reside on, or be used in conjunction with, any system or device capable of permitting or facilitating remote display, remote viewing, and/or remote use, of the system, program or documentation;
(iv) In no event shall you make, or attempt to or permit the making of, any improvements, modifications, or amendments to the system, program, and/or documentation;
(v) You may not disassemble the program or documentation into smaller parts or learning objects, and You may not copy the system, program or documentation to any media, disk drive, network server, CD-ROM, or other machine-readable media, for distribution. Notwithstanding anything to the contrary herein, You shall not, nor shall You aid or permit any third party to, modify, reverse engineer, reproduce, decompile or disassemble the program, or otherwise attempt to create the source code from the program;
(vi) You shall not modify, adapt, or create derivative works based on the system, program, or documentation; (vii) You shall not use, nor cause or permit to be used, the system, program, or documentation in any manner that infringes LEARNKEY's rights or the rights of any third party; (viii) You shall not distribute, nor cause or permit to be distributed, the system, program, or documentation, or derivatives thereof; and
(vii) You shall not electronically transfer the system, program, or documentation through a local area network, wide area network, or any other computer network system, or through any computer subscriber system, bulletin-board system, or other system of comparable functionality.
6. Restrictions on Transfer.
You shall not sell, rent, lease, sublicense, assign, transfer, network, reproduce, or timeshare the system, program, documentation, or Your rights, duties, or obligations under this agreement, nor cause or permit any third party to do the same. Further, any such sublicense, assignment, or other transfer of any of Your rights, duties, or obligations hereunder is void ab initio (from the beginning).
(iii) EXCEPT AS PROVIDED HEREIN, THE system, program, AND documentation ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE;
(iv) LEARNKEY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF USE, OF THE system, program, OR documentation IN TERMS OF VALIDITY, ACCURACY, COMPLETENESS, RELIABILITY OR OTHERWISE, NOR DOES LEARNKEY WARRANT, GUARANTEE, OR REPRESENT THAT THE FUNCTIONS CONTAINED IN THE system, program, OR documentation WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE program WILL BE UNINTERRUPTED OR ERROR FREE. ACCORDINGLY, THE ENTIRE RISK OF THE RESULTS, OPERATION, AND PERFORMANCE OF THE system, program, AND documentation IS ASSUMED BY YOU, AND NEITHER LEARNKEY, NOR ITS AGENTS, EMPLOYEES, OR CONTRACTORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE SUCH system, program, AND/OR documentation, EVEN IF LEARNKEY HAS BEEN ADVISED OF THE POSSIBILITY OR PRIOR OCCURRENCE OF SUCH DAMAGES; and
(v) Some states do not allow the exclusion of implied warranties or the limitations or exclusion of liability for incidental or consequential damages, so the above exclusion may not apply to You. The Limited Warranty gives You specific legal rights, and You may also have other rights that vary from state to state.
9. Questions.
All questions concerning this agreement may be directed to LEARNKEY at:
LEARNKEY, Inc.
Attn: License Dept.
1845 W. Sunset Blvd.
St. George, UT 84770
10. Jurisdiction and Disputes.
This agreement shall be governed by the laws of the State of Utah. All disputes concerning this agreement shall be resolved in the applicable state or federal courts of the State of Utah. The Parties hereto consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
11. Integration.
This agreement and the accompanying Shrinkwrap License collectively constitute the entire understanding of the Parties hereto with regard to the matters contemplated hereby, and is intended as a final expression of Parties' agreement. This agreement shall not be modified or amended except in writing signed by the Parties and specifically referring to this agreement. This agreement shall take precedence over any other documents that may be in conflict therewith. If, for any reason, any provision of this agreement is found to be unenforceable, such provision shall be deemed to prohibit such activity to the extent it is found to be enforceable and other provisions of this agreement shall be unaffected to the extent permitted by law.