DIY eLearning, Ltd. ROYALTY FREE LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“User”) AND DIY eLearning Ltd. (“DIYELEARNING”) WHEN USED HEREIN SHALL MEAN DIY eLearning, Ltd, OR ITS WHOLLY OWNED SUBSIDIARIES, THIS LICENSE AGREEMENT APPLIES, WITHOUT LIMITATION, TO THE PRODUCTS CURRENTLY LOCATED AT: http://www.diyelearning.com, ANY INTERNATIONAL OR OTHER VERSIONS OF THE FOREGOING, FUTURE DIYELEARNING WEBSITES AND/OR ANY PRODUCTS.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS. USER ACCEPTANCE OF THESE TERMS IS AN ABSOLUTE CONDITION TO USER’S ACCESS TO AND USE OF ANY PRODUCTS. DOWNLOADING AND/OR USING ANY PRODUCTS FROM DIYELEARNING CONFIRMS USER’S ACCEPTANCE OF THESE TERMS AND FORMS A LEGAL CONTRACT BETWEEN USER AND DIYELEARNING. DIYELEARNING reserves the right to change any of the terms of this Agreement at any time, and User agrees to be bound by such changes. If User does not agree to the following terms, as may be amended, do not download or use any Product(s) or the Product Editor.
“Product Editor” shall mean the web-based DIY eLearning Interaction Editor for Flash Interactions. Access is set up upon purchasing an interaction and User will be provided with a username and password. The web-based editor is accessible via web browser at the DIYELEARNING website.
“Product(s)” shall mean interactions, animations, graphics, illustrations, or any other product on the DIYELEARNING Website, regardless of whether the Product(s) are obtained via download from any DIYELEARNING Web site, delivered via any storage media (CD, DVD, disk, etc.) that is now known or may become known in the future, or obtained from a DIYELEARNING authorized distributor.
“Storage Media” shall mean CD-ROM, digital video disc (DVD) or any other storage device or media now known, or hereafter created.
The Product Editor
and Product(s) are copyrighted and protected under the various laws of the
United States, International treaties and other applicable laws. The Product
Editor and Product(s) shall remain the sole and exclusive property of
DIYELEARNING, or its licensors. Use of the Product Editor and Products are licensed,
not sold, pursuant to the terms of this License Agreement. Use of the Product
Editor or Products without agreeing to this License Agreement, or a breach of
these License Agreement terms, is copyright infringement.
C. Grant: adhere
(I) Paid License.
DIYELEARNING grants the User a non-exclusive and non-transferable license to use the Product Editor and Product(s) only as provided in this License Agreement.
This License Agreement, and User’s right to use the Product Editor and Product(s) shall immediately, and automatically be deactivated upon the termination of User’s Product(s) license, however, after the license term User may continue to use any Product(s) incorporated into a product or service during the license term in the same product or service in accordance with the terms of this Agreement. User will hold all passwords in the strictest of confidence. User may not share or disclose any password to any others or third party other than as specifically provided for herein. If User breaches any provision of this section, we shall be entitled to (i) terminate this Agreement immediately, (ii) retain all payments paid pursuant to this Agreement and, (iii) seek any legal or equitable remedies.
Access to the Product Editor is solely to be used by the User and no others. User may not provide any others with access to the Product Editor at any time for any reason. The Product Editor is accessible via an internet connection.
If User is licensing Products from DIYELEARNING’s third party suppliers, special license terms from the third party suppliers may apply. Please see the individual Web site for details of any special license terms.
D. Number of Users (defined above):
(I) USER IS GRANTED A SINGLE USER LICENSE FOR USE OF THE PRODUCT EDITOR. USER MAY NOT ALLOW OTHERS TO USE USER’S LOGIN INFORMATION.
E. Permitted Uses (subject to Section 1(F) below). User may:
(I) Use the Product(s) in any training course, websites and presentations, provided such use is not intended to allow the re-distribution or re-use of the Product(s) or access to the Product Editor.
(II) Use the Products(s) on an unlimited number of machines within the same organization only, and cannot be distributed to other companies or third parties under this agreement.
(III) Make any necessary modifications to the Product(s) using the Product Editor and save up to 5, 10, 15, or 20 instances (depending on your purchase) during each Product license on our server for a period of one year after date of purchase, upon expiration the User must renew Product(s) license.
(IV) Modify or alter the Product(s) using the Product Editor as necessary for use, subject to the terms of Section 4, and provided that if such modification or alteration constitutes a derivative work, User does not acquire any copyright ownership or equivalent rights in or to any of the Product(s), Product Editor, or any other property of DIYELEARNING or its licensors and User shall only use such derivative work in accordance with this Agreement. If requested by DIYELEARNING, User agrees to execute a written assignment of any such rights, including copyrights, at no cost to DIYELEARNING.
(V) Use the Product(s) for any other uses approved in writing by DIYELEARNING.
F. Prohibited Uses. User may NOT:
(I) Sublicense, distribute, transfer or assign Product(s) or rights to
(II) Reverse engineer, decompile, translate, or disassemble any part of the Product Editor or Product(s).
(III) Copy or reproduce the Product Editor or Product(s), except as specifically provided for in Section 1(E).
(IV) Remove any copyright or trademark from any place where it appears on the Product Editor or Product(s).
(V) Use the Product Editor or Product(s) to compete with DIYELEARNING. DIYELEARNING is in the business of licensing Products to its customers. It is the specific intent of this provision to prohibit User from using the Product Editor or Product(s) to enter, either directly or indirectly, a similar or competing business.
(VII) Edit the Product(s) using anything other than the Product Editor
(VIII) User may not claim intellectual or exclusive ownership to the Product Editor or any of our Products, modified or unmodified. All Products are property of DIYELEARNING.
(IX) Use the Product(s) in any downloadable format intended for multiple distribution; contact email@example.com for information.
(X) Use the Product Editor or Product(s) in any way that could be considered defamatory, pornographic, libelous, immoral, obscene, fraudulent, or illegal.
(XI) Use the Product Editor or Product(s) beyond any limitations or restrictions noted on a DIYELEARNING Website.
(XII) Provide others with login access to the Product Editor; this is a single User license for one single person.
G. Additional Terms
DIYELEARNING reserves the right to
(i) not permit use of the Product Editor or any Product(s) for any reason
whatsoever; and (ii) notify User that the Product Editor or certain Product(s)
are no longer available for use. Upon such notification, the license to use
such Product(s) shall automatically and immediately terminate.
(II) All other rights not expressly granted to User are reserved solely for DIYELEARNING.
(III) DIYELEARNING reserves the right to replace Product(s) with an alternative Product for any reason. Upon notice of such replacement, the license for the replaced Product(s) immediately, and automatically, terminates for any use of the Product(s) that does not already exist, and this License Agreement shall automatically apply to any replacement Product(s).
2. PAYMENT TERMS
User agrees to pay all Product(s) license fees, and no rights are granted under this Agreement until all payments are made in full. A service charge of two percent (2%) per month, or the amount allowed by law, will be charged on any unpaid balance. Any claims for adjustments must be made to DIYELEARNING within five (5) days of billing. User shall be liable for all past due amounts, interest and costs of collection, including attorneys’ fees. Refunds are governed by the terms of the individual service used. Please see Section 11 below for terms applicable to refunds in the event of cancellation.
A. This License Agreement is effective until it is terminated.
(I) This License Agreement will terminate automatically, without notice from DIYELEARNING, if User fails to comply with any provision of this License Agreement.
(II) User can terminate this Agreement by destroying the Product(s), along with any copies or archives, any CD-ROM or accompanying materials (if applicable), and ceasing all use of the Product(s) for any purpose. This includes contacting us to deactivate User’s Product Editor access. Such termination may not affect payment obligations.
B. DIYELEARNING may, in its sole discretion: (i) monitor, as frequently as DIYELEARNING determines, anything User downloads from our Web sites or edits using the Product Editor, (ii) track any abuse of User’s username and password, (iii) suspend or terminate User’s account, without notice, if DIYELEARNING believes there is a violation of this Agreement, the website terms and/or any abuse of User’s username and password.
C. Upon termination of this Agreement, User agree to (i) destroy all copies and archives of the Product(s), (ii) cease using the Product(s) for any purpose and contact us to deactivate access to the Product Editor, and (iii) confirm to DIYELEARNING in writing that User has complied with these requirements.
4. WARRANTY AND LIMITATION OF LIABILITY
A. DIYELEARNING represent and warrants that:
(I) it has the right to enter into this Agreement and to grant the rights hereunder;
(II) the Product(s) or other Storage Media (if applicable) will be free from defects in materials and workmanship under normal use for a period of 30 days from the date of license; and
(III) the Product(s) as provided hereunder, and used as permitted herein, will not infringe any copyright, trademark, moral right, right of privacy or any other intellectual property right of any third party.
B. DISCLAIMER OF WARRANTY. EXCEPT AS PROVIDED IN SECTION 4(A) ABOVE, THE PRODUCT(S), STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. DIYELEARNING MAKES NO WARRANTIES FOR ANY PRODUCTS THAT HAVE BEEN MODIFIED OR ALTERED BY USER AND USER SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS RELATING TO OR ARISING OUT OF USER MODIFICATION AND USE OF THE PRODUCTS. DIYELEARNING GRANTS NO RIGHTS OR WARRANTIES WITH RESPECT TO THE USE OF NAMES, TRADEMARKS, LOGO TYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY PRODUCT, AND THE USER MUST SATISFY ITSELF THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS AS MAY BE REQUIRED ARE OBTAINED. DIYELEARNING DOES NOT WARRANT THAT THE PRODUCT EDITOR, PRODUCT(S), WEB SITES OR OTHER MATERIALS, WILL MEET USER’S REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE PRODUCT EDITOR AND PRODUCT(S) IS SOLELY WITH USER. THE USER UNDERSTANDS THAT HE/SHE SHOULD SEEK COMPETENT COUNSEL BEFORE USING THE PRODUCT EDITOR AND PRODUCT(S) ON OR IN CONNECTION WITH ANY GOODS OR SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES. DIYELEARNING SHALL NOT BE LIABLE TO THE USER OR TO ANY OTHER ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF USER’S USE OF THE PRODUCT EDITOR AND PRODUCT(S), DIYELEARNING’S BREACH OF THIS AGREEMENT OR OTHERWISE, EVEN IF DIYELEARNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL DIYELEARNING’S TOTAL AGGREGATE LIABILITY TO THE USER, OR TO ANY THIRD PARTY CLAIMING THROUGH THE USER, ARISING OUT OF OR IN CONNECTION WITH THE USER’S USE OF OR INABILITY TO USE THE PRODUCT EDITOR OR PRODUCT(S) (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED FIVE (5) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY DIYELEARNING FOR THE USER’S USE OF THE PRODUCT EDITOR AND APPLICABLE PRODUCT(S).
C. User represents,
warrants and covenants that:
(I) User is at least eighteen years of age and has the full right and authority to enter into this License on behalf of User and/or User’s company, employer or principal;
(II) User does not reside in any country to which export of US products are prohibited or restricted and User may not ship, transfer or export any of the Products into any country or use any of the Product Editor or Products in any manner prohibited by any laws, restrictions or regulations;
(III) User will not use the Product Editor or Product(s) in any way that is not permitted by this License;
(IV) User’s use of the Product Editor and Product(s) will not violate any applicable law or regulation of any country, state, or other governmental entity;
(V) The information that User provides to DIYELEARNING is accurate and true, including, without limitation, all credit card or other payment information and User shall update such information as necessary;
(VI) User is solely responsible for determining whether use of the Product Editor and any Product(s) requires the consent of any other party or the license of any additional rights. If User is unsure whether additional rights are needed for use of the Product Editor and Products, User is responsible for consulting with competent legal counsel; and
(VII) If User is acting as an agent, User must inform client/principal of the terms of this License.
5. LIMITATION OF REMEDIES
A. Replacement or Refund:
DIYELEARNING’s entire liability and User’s exclusive remedy, with respect to any claims arising out of this Agreement, except as set out in Section 6 below, shall be at DIYELEARNING’s sole discretion, either: (i) replacement of Product(s); or (ii) refund of any fee paid for the specific Product(s). Any claims must be brought within twelve (12) months of the date that User discovers such claim, or reasonably should have discovered such claim, or shall be waived. See Section 11 for other refund terms that may apply.
User agrees to indemnify and hold DIYELEARNING, its affiliates, parents, subsidiaries, employees, directors, officers, successors, assigns, distributors and anyone else associated with DIYELEARNING, harmless from, and against, any and all claims, liabilities, costs, damages, or expenses, (including attorney’s fees) asserted against DIYELEARNING arising out of User’s use of the Product Editor and Product(s) or in connection with any breach of any of the terms of this Agreement. Provided that the Product Editor and Product(s) are used only in accordance with this Agreement and User is not otherwise in breach of this Agreement, DIYELEARNING shall defend, indemnify and hold User harmless from all damages (excluding punitive damages), liabilities and expenses (including reasonable attorney’s fees and authorized costs), arising out of or in connection with any actual or threatened lawsuit, legal proceeding or claim alleging that DIYELEARNING is in breach of its warranties set out in Section 4 above. The foregoing states DIYELEARNING’s entire indemnification obligation under this Agreement and User’s sole and exclusive remedy for any actual breach of DIYELEARNING’s representations and warranties set forth herein. DIYELEARNING shall have no obligation under this Section 6 unless User promptly provides DIYELEARNING with written notice of such claim. DIYELEARNING shall have no liability or duty to indemnify if the claims, liabilities, costs, damages, or expenses result from: (i) the modification or alteration of the Product Editor or Products by anyone other than DIYELEARNING or (ii) the combination of the Product(s) with any downloadable format intended for multiple distribution to the extent that such any claims would not have arisen had such modification or combination not been made. At the indemnifying party’s option, the indemnifying party may assume the handling, settlement or defense of any claim or litigation and the indemnified party shall reasonably cooperate in the defense thereof. The indemnified party shall have the right to participate in the litigation, at its own expense, through counsel selected by the indemnified party. The indemnifying party will not be liable for legal fees or other costs incurred prior to the indemnified party giving notice of the claim for which indemnity is sought.
If any provision of this Agreement is held to be not enforceable, such provision shall be reformed only to the extent to make it enforceable, consistent with the parties’ intent.
B. Taxes and other:
User agrees to pay and be solely responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to User, or User’s use of the Product(s), pursuant to this Agreement.
C. Waiver. No action of DIYELEARNING, other than an express written, signed waiver may be construed as a waiver of any part of this Agreement, and no employee of DIYELEARNING is authorized to make an oral waiver. In the event that DIYELEARNING waives a specific part of the Agreement, it does not mean that DIYELEARNING waives any other part.
This Agreement, its validity and effect, shall be solely interpreted, and governed by, the laws of the State of Ohio, United States. Any claims shall be brought solely in the Federal District Court of the District of Ohio and User expressly consents to the exclusive jurisdiction of the federal courts of the State of Ohio, United States. User consents to the service of any required notice or process upon User by registered mail or overnight courier to the address provided to DIYELEARNING with User’s registration, as User may update from time to time, with proof of delivery.
9. LEGAL FEES
User agrees to reimburse DIYELEARNING for its legal fees, costs and disbursements if DIYELEARNING is successful in enforcing any of its rights under this Agreement including, without limitation, in connection with any action to collect payment.
User may not assign or transfer to anyone else the rights granted to User in this Agreement, without our prior written consent. DIYELEARNING may assign or transfer this Agreement freely.
If User wishes to cancel the rights granted in this License and User’s invoice, the following apply:
If User licensed single Products, User may receive a full refund if User submits a completed and signed refund request within fourteen (14) days of User’s invoice date. After fourteen (14) days, no cancellations will be accepted, no refunds made and User will be responsible for and must pay the full amount of the invoice. By requesting a refund, User hereby represents and warrants that User has deleted or destroyed all downloaded Products.
All cancellations are final. See Termination Section 3 above for other applicable terms.
12. ENTIRE CONTRACT
USER ACKNOWLEDGES THAT USER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. USER FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN USER AND DIYELEARNING, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN USER AND DIYELEARNING RELATING TO THE SUBJECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE ORDER TERMS (EVEN IF SUCH TERMS ARE SUBSEQUENT TO THE DATE OF THIS AGREEMENT). FAQ'S, OTHER EXPLANATIONS, AND TEXT IN DIYELEARNINGS’ WEB SITES ARE FOR USER’S INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS, PART OF THIS AGREEMENT UNLESS SPECIFIED OTHERWISE IN THIS AGREEMENT.