IMPORTANT - READ CAREFULLY
LEARNOSITY LIMITED (“LEARNOSITY”) OR ITS LICENSORS OWN THE INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND DOCUMENTATION USED TO SUPPLY THE LEARNOSITY VOICE HOSTED SOLUTION (“HOSTED MATERIALS”). IT IS UNLAWFUL TO LOAD, INSTALL INTO A COMPUTER, COPY OR USE THE HOSTED MATERIALS WITHOUT OUR LICENCE. LEARNOSITY IS WILLING TO LICENSE THE HOSTED MATERIALS TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL THE TERMS AND CONDITIONS CONTAINED IN THIS LICENCE AGREEMENT.
LICENCE ACCEPTANCE PROCEDURE: BY INDICATING ON THE APPROPRIATE BOX OR BUTTON ON WWW.LEARNOSITY.COM YOU ACCEPT THE TERMS OUTLINED HEREIN THIS AGREEMENT AND THE LIMITED WARRANTY AND LIMITATION OF LIABILITY SET OUT IN THIS LICENCE. YOU ARE (I) REPRESENTING THAT YOU ARE NOT A MINOR AND HAVE FULL LEGAL CAPACITY AND HAVE THE AUTHORITY TO BIND YOURSELF AND IF APPLICABLE, YOUR EMPLOYER, TO THE TERMS OF THIS AGREEMENT; AND (II) CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORISED REPRESENTATIVE OF YOUR EMPLOYER. IF YOU ARE NOT SO AUTHORISED, NOR DEEMED IN LAW TO HAVE SUCH AUTHORITY, YOU ASSUME SOLE PERSONAL LIABILITY FOR THE OBLIGATIONS SET OUT IN THIS LICENCE.
Definitions, Software Permissions and Restrictions
“Computer” means an electronic programmable device for the storage and processing of information;
“Documentation” means the relevant User Manual and User Guide for the Software;
“Order Document” means the order documentation in a format acceptable to LEARNOSITY, under which the Software was ordered;
“Software” means the relevant version of the LEARNOSITY software program hosted by LEARNOSITY for which You have paid the licence fees;
“You or Your” means the entity licensing the Hosted Materials as set out in the Order Document;
“Use” means access to the Hosted Materials in conformity with this Agreement and the relevant Documentation.
Licence Grant
LEARNOSITY owns or is authorised to license the object code version of the Software and upon signing this Licence You accept a personal, non-exclusive, non-transferable licence to Use, solely for Your own purposes, the Documentation and object code version of the Software for a limited term as ordered and paid for by You on the online order form on www.learnosity.com, under the terms and conditions set forth herein. LEARNOSITY or its licensors owns all intellectual property rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Hosted Materials. Your rights are limited to those expressly granted in this Agreement.
Evaluation Licence
If indicated as an “Evaluation Licence” in the Order Document You hereby granted a temporary, for the term set out in the Order Document, non-transferable, and non-exclusive license (without right to sublicense) to Use the Hosted Materials solely for the purpose of evaluating and testing the Software in accordance with the terms and conditions of this Licence.
Licence Fees
Payment of the fees specified and/or as agreed between You and LEARNOSITY, shall entitle You to access and Use the Hosted Materials.
Maintenance and Support
You shall receive the following services for the licensed Hosted Materials during Support as set out on www.learnosity.com. Web based support services which includes submitting, reviewing and updating service requests and email support, Support shall not be provided for: (i) the use of any licensed Software in a manner inconsistent with the respective Documentation or this Agreement; (ii) any licensed Software which has been modified by anyone other than LEARNOSITY or LEARNOSITY’s authorised support providers; (iii) failure of licensed Software as a result of accident, abuse or misapplication; (iv) use of the licensed Software with products or software that are not commercially available; and (v) any version of the licensed Software as to which a subsequent version was released more than three (3) months earlier. Licensed Software upgrades that add substantially new functionality as determined by LEARNOSITY may require the payment of an additional fee. Upgrades will be subject to this Agreement as well as any additional then current terms and conditions so long as any additional terms and conditions do not conflict with this Agreement. Upgrades, as well as other information, shall be made available for download from LEARNOSITY’s website or by shipment to You at LEARNOSITY’s discretion. You accept that from time to time LEARNOSITY may need to turn off Your access to the Hosted Materials to undertake system maintenance of the Software.
This ageement entitles You to:
access and Use the Hosted Materials utilising a web browser and/or mobile telephony device up to the number of concurrent users set out during Your purchase transaction ; and
copy and use the Documentation as reasonably necessary in connection with Your authorised personal Use of the Hosted Materials.
You may not:
modify, adapt, translate, decompile, disassemble, or reverse engineer the Software or create derivative works of or based on the Software, except to the extent that the foregoing restriction is expressly prohibited by applicable law;
make unauthorised copies of the Software or the Documentation;
allow any unauthorised third party to use or have access to the Software or Documentation;
use the Software to provide services to any third party, including Your affiliates or subsidiaries;
to the fullest extent permitted by law, use the Software as an add-in product to any third party product without LEARNOSITY’s prior written consent;
Use, evaluate or view the Software or Documentation for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, which performs functions similar to the functions performed by the Software;
provide externally or to third parties any oral or written communication describing or summarising the features, functions or performance characteristics of the Software or Documentation or that compares the Software to any similar product of Yours or any third party;
disclose, reproduce, distribute or use the Software or Documentation except as necessary to exercise the license granted hereunder; or
without the prior written consent of LEARNOSITY, sub-licence, rent, lease, transfer or assign Your rights under this Agreement, including an assignment by operation of law.
You acknowledge and agree that:
You will include on permitted copies of the Documentation all copyright, trademark and other proprietary rights notices included on the originals;
the Software and Documentation contain valuable proprietary information and trade secrets of LEARNOSITY and You shall protect the secrecy of, and avoid disclosure and unauthorised access to and Use of, the Software and Documentation, using at least those measures that You take to protect Your own confidential information, but in no event shall such measures be less than reasonable;
You shall comply with all applicable export control laws and regulations with respect to the Software and Documentation;
any violation or threatened violation of this Agreement may cause irreparable injury to LEARNOSITY for which LEARNOSITY may apply for injunctive relief, in addition to all legal remedies; and
upon violation of any of the provisions of this Agreement Your rights to use the Software and Documentation shall automatically terminate and access to the Hosted Materials shall be suspended or terminated as determined by LEARNOSITY in their sole discretion.
LIMITED WARRANTY. LEARNOSITY warrants that throughout the licensed term (as ordered by You in the Order Document), commencing from the date access is provided to the Hosted Materials by LEARNOSITY (“Warranty Period”), the Software will operate substantially in accordance with the Documentation. LEARNOSITY does not warrant that the functions of the Software will meet Your requirements or that operation of the Software will be uninterrupted or error free. You must inform LEARNOSITY in writing during the Warranty Period if the Software does not operate as warranted and provide to LEARNOSITY such information and materials as LEARNOSITY may reasonably request to document and reproduce such problem and to verify whether any proposed solution corrects such problem. Following the receipt of such information and materials, if LEARNOSITY determines, in its sole discretion, that the Software does not operate as warranted, then LEARNOSITY will at its election, either: (a) modify the Software so that it operates as warranted; (b) replace the Software with other software offering substantially similar functionality; or, (c) if neither (a) nor (b) is commercially feasible, refund the license fee paid to LEARNOSITY or their authorised reseller for access to the Hosted Materials. LEARNOSITY do not warrant that Your access and Use of the hosted Materials will be uninterrupted or error free. LEARNOSITY does not warrant that 3rd party telephony or Internet services that may be used in conjunction with the Hosted Materials will be uninterrupted or error free.
EXCLUSIONS. LEARNOSITY shall have no responsibility, warranty or other obligations whatsoever if You: (a) use the Software: (a) in a manner inconsistent with the Documentation or this Agreement; or (b) modify the Software; or (c) cause a failure of the Software through accident, abuse or misapplication.
NO OTHER WARRANTIES. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THE LIMITED WARRANTY SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATION GENERATED, SATISFACTORY QUALITY, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
INTELLECTUAL Property Indemnity. Subject to the Intellectual Property Indemnity Limitations Section set forth below, LEARNOSITY will defend, at its own expense, any claim, suit or proceeding brought against You to the extent it is based upon a claim that the Software (“Indemnified Product”) obtained pursuant to this Agreement infringes upon any patent, or copyright, or misappropriates a trade secret of any third party (“Claim”). You shall: (a) promptly notify LEARNOSITY in writing of any such Claim; (b) give LEARNOSITY full information and assistance in connection therewith; and (c) give LEARNOSITY the sole right to control the defence of any such Claim and the sole right to settle or compromise any such Claim. LEARNOSITY shall pay all damages, costs, and expenses finally awarded to third parties against You in such action by a court of competent authority or agreed to in settlement by LEARNOSITY. If the Software is, or in LEARNOSITY's reasonable opinion might be, held to infringe or misappropriate as set forth above, LEARNOSITY may, at its option and expense replace or modify such Software with a program substantially similar in functionality so as to avoid infringement or misappropriation, or procure the right for You to continue the use of such Software. If neither of such alternatives is, in LEARNOSITY's opinion, commercially reasonable, Your access and Use of the Software shall be terminated, and LEARNOSITY shall refund the licence fees paid by You to LEARNOSITY or their authorised reseller for such Software. TO THE FULL EXTENT PERMITTED BY LAW, THE FOREGOING STATES THE ENTIRE LIABILITY OF LEARNOSITY TO YOU CONCERNING INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENT, COPYRIGHT, TRADEMARK, AND TRADE SECRET RIGHTS, AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT OR MISAPPROPRIATION.
INTELLECTUAL PROPERTY INDEMNITY LIMITATIONS. LEARNOSITY shall have no liability for, and no obligation to defend You against any claim of infringement to the extent such claim is based on: (a) use of an Indemnified Product outside the scope of this Agreement; (b) use of a superseded or altered release of an Indemnified Product; (c) the combination, operation, or use of an Indemnified Product with software, hardware or other materials not specified in the Documentation; (d) any modification of the Indemnified Product not made or authorised in writing by LEARNOSITY; or (e) Your use of the Indemnified Product after LEARNOSITY’s notice to You that it shall cease use of the Indemnified Product due to such Claim. The above exclusions apply to the extent that the infringement would have been avoided but for such improper use.
LIMITATION OF LIABILITY. SAVE IN RESPECT OF A BREACH OF LEARNOSITY’S INTELLECTUAL PROPERTY RIGHTS AND EXCEPT FOR LEARNOSITY’S OBLIGATIONS UNDER “INTELLECTUAL PROPERTY INDEMNITY”, AND ANY DAMAGES ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS BY EITHER PARTY OR A BREACH BY YOU OF THE LICENSE GRANT AND CONDITIONS FOR THE SOFTWARE, THE PARTIES (FOR THEMSELVES AND THEIR RESPECTIVE THIRD PARTY LICENSORS, SUPPLIERS OR CONTRIBUTORS) EXCLUDE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INDIRECT, CONSEQUENTIAL (INCLUDING LOST PROFITS AND DATA), INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SAVE IN RESPECT OF A BREACH OF LEARNOSITY’S INTELLECTUAL PROPERTY RIGHTS AND EXCEPT FOR LEARNOSITY’S OBLIGATIONS UNDER “INTELLECTUAL PROPERTY INDEMNITY” AND ANY DAMAGES ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS BY EITHER PARTY, TO THE MAXIMUM EXTENT ALLOWED BY LAW LEARNOSITY’S MAXIMUM LIABILITY TO YOU FOR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED 120% OF THE AMOUNT PAID BY YOU FOR THE SOFTWARE GIVING RISE TO THE CAUSE OF ACTION. TO THE EXTENT NOT PROHIBITED BY LAW, LEARNOSITY’S THIRD PARTY LICENSORS, SUPPLIERS OR CONTRIBUTORS SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNT OR KIND OF DAMAGES ARISING OUT OF USE OF, OR INABILITY TO USE, THE SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.
THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
The foregoing exclusions and limitations upon liability shall not apply to any liability for damages arising from (a) tangible property damage to the extent that such is due to the negligence of an employee or authorized agent of LEARNOSITY, in which event LEARNOSITY’s maximum liability shall be limited to £10,000.00 for each event or series of events; or (b) death or personal injury caused by the negligence of an employee or authorized agent of either party; or (c) wilful misconduct or gross negligence of either party.
Publicity. You hereby grant LEARNOSITY the right, without obtaining further consent, to use your details, including your name, and Your use of the Software for all advertising purposes.
SURVIVABILITY. The following shall survive expiration or termination of this Agreement: Licence Grant, Confidentiality Restrictions, Intellectual Property Indemnity Limitations, Limitation of Liability, Audit Rights, Law and Jurisdiction, and General Provisions.
LAW AND JURISDICTION. An action at law under this Agreement may only be brought before a court of appropriate jurisdiction in the country whose law governs this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
The validity of this Agreement its interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of it or its expiration or earlier termination for any reason shall be determined by the substantive law, excluding the private international law rulesthe Republic Ireland and will be submitted to the exclusive jurisdiction of the Irish courts.
RETURNS. You will be eligible to apply for a full refund on the value you paid for your purchases from Learnosity within 14 days of the purchase date. Applications for refund shall be made in writing by email to info@learnosity.com or in writing to Learnosity Ltd, St Johns, Beamore Road, Drogheda, Co Louth, Ireland.
GENERAL PROVISIONS. This Agreement represents the complete agreement concerning this licence, supersedes all prior agreements, and may be amended only in writing and executed by duly authorised representatives of both parties. Save in respect to quantity and price, the provisions of any order document issued by You shall be of no effect (notwithstanding any provisions in such order document to the contrary). If any provision of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute, rule or law, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. Headings used in this Agreement are provided for convenience only, and shall not in any way affect the meaning or interpretation hereof. A waiver of a breach or default under this Agreement shall not be a waiver of any other breach or default. Failure of either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition unless accompanied by a clear written statement that such term or condition is waived. Save in respect to Your obligation to pay LEARNOSITY’s invoice’s as and when they fall due, neither party shall not be responsible for any failure to perform due to “force majeure” causes beyond its reasonable control including, but not limited to, acts of God, riots, embargoes, terrorist acts, acts of civil or military authorities, disruptions in the flow of data to or from networks, denial of or delays in processing of export licence applications, accidents, strikes, fuel crises or power outages.
LEARNOSITY Limited
St. Johns, Beamore Road, Drogheda, Co. Louth, Ireland.
