Examit LLC (“Examit”) provides test preparation services, and does not verify or guarantee that every user is eligible to take the exam with respect to which test preparation services are purchased. Examit is not affiliated with any particular publisher of any examinations or any government agencies with oversight relating to any examinations. Users are solely responsible for verifying any and all background prerequisites and registering for the relevant examination. Likewise, Examit does not guarantee that any user will be able to achieve any particular test score or score improvement on any exams.
End User License Agreement
This End User License EULA together with the Invoice, as defined below (collectively, this “EULA”), is a binding agreement between EXAMIT LLC, a Texas limited liability company (“Examit”) and the person identified on the Invoice as the customer, subscriber, or licensee with respect to the Site (“Licensee” or “you”).
Examit PROVIDES THE APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THIS EULA IN FULL. BY (A) CLICKING OR CHECKING THE “SUBSCRIBE,” “PURCHASE,” AGREE”, “ACCEPT”, “INSTALL” OR SIMILAR BUTTON OR CHECKBOX, (B) INSTALLING OR USING A PURCHASED, TRIAL, OR ANY OTHER VERSION OF THE APPLICATION; AND/OR (C) TAKING ANY OTHER ACTION INDICATING ASSENT TO THE PURCHASE OR TRIAL USE OF the Site, YOU (1) ACCEPT THIS EULA AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (2) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER, OR OTHER LEGAL AGE IN ACCORDANCE WITH APPLICABLE TO ENTER INTO A BINDING EULA AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA, EXAMIT WILL NOT AND DOES NOT LICENSE THE APPLICATION TO LICENSEE AND YOU SHALL NOT DOWNLOAD OR INSTALL THE APPLICATION OR ANY DOCUMENTATION OR OTHER MATERIALS RELATING TO THE APPLICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS EULA TO ANY APPLICATION THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF Examit'S APPLICATION.
- Definitions. For purposes of this EULA, the following terms have the following meanings:
“Authorized Users” means solely those individuals authorized to use the Site pursuant to the license granted under this EULA, typically consisting of Licensee and any other individuals so authorized, as set forth on the Invoice (if any).
“Documentation” means user manuals, technical manuals, and any other materials provided by Examit, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Site.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this EULA.
“Examit” has the meaning set forth in the preamble.
“Invoice” means, collectively, an invoice, subscription purchase, an order form, quote, purchase order, or similar document, whether in tangible or electronic form, that is filled out and submitted by or on behalf of Licensee, and accepted by Examit, for Licensee's purchase and/or trial of the license for the Site granted under this EULA.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Site” means Examit’s website, online application and other software and/or any other software programs for which Licensee is purchasing a license, if any, as expressly set forth in the Invoice.
“Term” has the meaning set forth in Section 11.
“Third Party” means any Person other than Licensee or Examit.
“Update” has the meaning set forth in Section 7(b).
- License Grant and Scope. Subject to and
conditioned upon Licensee's payment of the License Fees and Licensee's strict compliance with all
terms and conditions set forth in this EULA, Examit hereby grants to Licensee a non-exclusive,
non-transferable, non-sublicensable (except as may be expressly permitted in accordance with Section
2(e)), limited license during the Term to use, solely by and through its Authorized Users, the Site
and Documentation, solely as set forth in this Section 2 and subject to all conditions and
limitations set forth in Section 4 or elsewhere in this EULA. This license grants Licensee the
right, exercisable solely by and through Licensee's Authorized Users, to:
- Use in accordance with the Documentation one (1) copy of the Site on one (1) computer or
server, or such other number of computer(s) and server(s) as may be expressly authorized in
the Invoice for such purpose, that is or are owned or leased, and controlled by, Licensee.
Any and all copies of the Site made by the Licensee:
- will be the exclusive property of Examit;
- will be subject to the terms and conditions of this EULA; and
- must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
- Use and run the Site as properly installed in accordance with this EULA and the Documentation, solely as set forth in the Documentation and solely for Licensee's internal business purposes. Such use is permitted only on the computer and/or server on which the Site is installed in accordance with the express terms of the Invoice, at the physical location thereof and not via any remote access or other network.
- Download or otherwise make one (1) copy of the Documentation per copy of the Site permitted
to be installed in accordance with this EULA, and use such Documentation, solely in support
of its licensed use of the Site in accordance herewith. All copies of the Documentation made
- will be the exclusive property of Examit;
- will be subject to the terms and conditions of this EULA; and
- must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
- Transfer any copy of the Site from one computer and/or server to another, provided that:
- the number of computers on which the Site is installed at any one time does not exceed the number permitted in accordance with Section 2(a); and
- Licensee notifies Examit in writing in advance of each such transfer, identifying specifically each computer and/or server on which the Site is installed.
- Grant sublicenses and distribute the Site solely as Examit and Licensee may agree by
separate signed writing, and subject to the following:
- all sublicenses shall be in form and substance that Examit approves in writing; and
- Licensee will be responsible and liable pursuant to the terms and conditions of this EULA for its sublicensees' actions and failures to take required actions with respect to the Site, to the same extent as if Licensee itself had committed such actions or failures under this EULA.
- Use in accordance with the Documentation one (1) copy of the Site on one (1) computer or server, or such other number of computer(s) and server(s) as may be expressly authorized in the Invoice for such purpose, that is or are owned or leased, and controlled by, Licensee. Any and all copies of the Site made by the Licensee:
- Third-Party Materials. The Site may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Examit and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this EULA (each, a “Third-Party License”). Licensee is bound by and shall comply with the terms and conditions of each Third-Party License. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this EULA.
- Use Restrictions. Licensee shall not, and shall
require its Authorized Users not to, directly or indirectly:
- use (including make any copies of) the Site or Documentation beyond the scope of the license granted under Section 2;
- provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Site or Documentation, except as may be permitted strictly in accordance with Section 2(e);
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Site or Documentation or any part thereof;
- combine the Site or any part thereof with, or incorporate the Site or any part thereof in, any other programs;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Site or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Site or Documentation, including any copy thereof;
- except as expressly set forth in Section 2(a) and Section 2(c), copy the Site or Documentation, in whole or in part;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Site, or any features or functionality of the Site, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
- use the Site or Documentation in, or in association with, the design, construction,
maintenance, or operation of any hazardous environments or systems, including:
- power generation systems;
- aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
- safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
- military or aerospace applications, weapons systems, or environments;
- use the Site or Documentation in violation of any law, regulation, or rule; or
- use the Site or Documentation for purposes of competitive analysis of the Site, the development of a competing software product or service, or any other purpose that is to Examit's commercial disadvantage.
- Responsibility for Use of Site. Licensee is responsible and liable for all uses of the Site and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Site and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Site and/or Documentation, to the same extent as Licensee directly committed such conduct, whether such access or use is permitted by or in violation of this EULA.
- User Contributions. The Site may contain message boards, chat functionalities, personal web pages or profiles, forums, bulletin boards, and other interactive features that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Site.
Any User Contribution you post to the Site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.
- Our Monitoring and Enforcement Rights. We shall have the right at all times to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion;
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site; and/or
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY AND EACH OF THE OTHER FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY OR ANY SUCH OTHER PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we cannot and do not undertake to review material before it is posted on the Site, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
- Content Standards. The content standards below
apply to any and all User Contributions within and relating to the Site. We do not undertake any
obligation to monitor User Contributions for compliance with these standards, but necessarily
reserve our right to take appropriate action in our sole discretion with respect to users and User
Contributions that fail to conform to such standards, which may include, but not be limited to,
termination of this EULA with respect to you and/or any other relevant Authorized Users. User
Contributions must in their entirety comply with all applicable federal, state, local, and
international laws and regulations. Without limiting the foregoing, User Contributions must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, consisting of or tending to result in bullying or cyberbullying, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if done without such actual and express authorization in a signed writing by a duly authorized representative of Examit.
- Compliance Measures.
- The Site may contain technological copy protection or other security features designed to prevent unauthorized use of the Site, including features to protect against any use of the Site that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
- On Examit's written request from time to time in Examit’S sole discretion, Licensee
shall conduct a review of its and its Authorized Users use the Site and certify to Examit in
a written instrument signed by an officer of Licensee that it is in full compliance with
this EULA or, if Licensee discovers any noncompliance:
- Licensee shall immediately remedy such noncompliance and provide Examit with written notice thereof. Licensee shall provide Examit with all access and assistance as Examit requests to further evaluate and remedy such noncompliance.
- If Licensee's use of the Site exceeds the number of copies or Authorized Users permitted under the license, Examit shall have the remedies set forth in Section 6(d).
- Examit reserves the right to audit Licensee’s use of the Site, from time to time in Examit’S sole discretion, to verify Licensee’s compliance with this EULA. Licensee shall reasonably cooperate with such audits by Examit and provide all reasonable access requested by Examit to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information.
- If an audit or other measures taken or implemented under this Section 6 determines that the
Licensee's use of the Site exceeds or exceeded the use permitted by this EULA then:
- Licensee shall, within 5 days following the date of such determination by Licensee or Examit's written notification thereof, pay to Examit any required retroactive License Fees for such excess use and, unless Examit terminates this EULA pursuant to Section 6(d)(iii), obtain and pay for a valid license to bring Licensee's use into compliance with this EULA. In determining the Licensee Fee payable pursuant to the foregoing, (x) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Site shall be deemed to have commenced on the commencement date of this EULA or, if later, the completion date of any audit previously conducted by Examit hereunder, and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).
- If the use exceeds or exceeded the use permitted by this EULA by more than 5% by value the License Fees previously paid versus the retroactive License Fees payable, Licensee shall also pay to Examit, within 10 days following the date of Examit's written request therefor, Examit's reasonable costs incurred in conducting an audit and other compliance measures steps under this Section 6.
- If the use exceeds or exceeded the use permitted by this EULA by more than 15% by value the License Fees previously paid versus the retroactive License Fees payable, Examit shall also have the option (but not the obligation) to terminate this EULA and the license granted hereunder, effective immediately upon written notice to Licensee.
Examit's remedies set forth in this Section 6(d) are cumulative and are in addition to, and not in lieu of, all other remedies Examit may have at law or in equity, whether under this EULA or otherwise.
- Maintenance and Support.
- Subject to Section 7(c), the license granted hereunder entitles Licensee to such software maintenance and support services, if any, as may be expressly described in an Invoice that is accepted by Examit.
- Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”), if any, as Examit may elect to provide from time to time in its sole discretion. Examit may develop and provide Updates in its sole discretion, and Licensee agrees that Examit has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Site, and related documentation will be deemed Documentation, all subject to all terms and conditions of this EULA. Licensee acknowledges that Examit may provide some or all Updates via download from a website designated by Examit and that Licensee's receipt thereof will require an internet connection, which connection is Licensee's sole responsibility. Examit has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Site that Examit may issue as a separate or new product, and Examit may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
- Examit reserves the right to condition the provision of maintenance and support services,
including all or any Updates, on Licensee's registration of the copy of Site for which
support is requested. Examit has no obligation to provide maintenance and support services,
- for any but the most current or immediately preceding version or release of the Site;
- for any copy of Site for which all previously issued Updates have not been installed;
- if Licensee is in breach under this EULA; or
- for any Site that has been modified other than by Examit or with the written and express authorization of Examit, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Examit in writing.
- Collection and Use of Information.
- Licensee acknowledges that Examit may, directly or indirectly through the services of Third
Parties, collect and store information regarding use of the Site and about equipment on
which the Site is installed or through which it otherwise is accessed and used
(collectively, “Information”), through:
- the provision of maintenance and support services; and
- security measures included in the Site as described in Section 6.
- Licensee agrees that Examit may use Information for any purpose related to any use of the
Site by Licensee or on Licensee's equipment, including but not limited to:
- improving the performance of the Site or developing Updates; and
- verifying Licensee's compliance with the terms of this EULA and enforcing Examit's rights, including all Intellectual Property Rights in and to the Site.
- Licensee acknowledges that Examit may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Site and about equipment on which the Site is installed or through which it otherwise is accessed and used (collectively, “Information”), through:
- Intellectual Property Rights. Licensee acknowledges and agrees that the Site and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Site or Documentation under this EULA, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this EULA. Examit, on behalf of itself and its licensors and service providers, if any, reserves and shall retain the entire right, title, and interest in and to the Site and all Intellectual Property Rights arising out of or relating to the Site, except as expressly granted to the Licensee in this EULA. Licensee shall use all reasonable efforts to safeguard all Site (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Examit if Licensee becomes aware of any infringement of Examit's Intellectual Property Rights in the Site and fully cooperate with Examit in any legal action taken by Examit to enforce its Intellectual Property Rights.
- Payment. All License Fees and fees for maintenance and support services (collectively, “Support Fees”) are payable in advance by Licensee, and may be recurring in nature, in the manner set forth in the Invoice, and are non-refundable, except as may be expressly set forth in an Invoice accepted by Examit. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
- Term and Termination.
- This EULA and the license granted hereunder shall remain in effect for the term set forth on the Invoice or until earlier terminated as set forth herein (the “Term”).
- Licensee may terminate this EULA by ceasing to use and destroying all copies of the Site and Documentation.
- Examit may terminate this EULA, effective upon written notice to Licensee, if Licensee, breaches this EULA and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 5 days after Examit provides written notice thereof.
- Examit may terminate this EULA, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
- Upon expiration or earlier termination of this EULA, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Site and Documentation. No expiration or termination shall affect Licensee's obligation to pay all License Fees and Support Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 12(c)(ii).
- Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
- Solely with respect to Site for which Examit receives a License Fee, Examit warrants that, for a period of 90 days following the purchase/license date set forth on the Invoice, the Site will substantially contain the functionality described in the Documentation, and when properly accessed from or installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith; provided, however, that THE FOREGOING WARRANTIES DO NOT APPLY TO ANY THIRD-PARTY MATERIALS, AND Examit SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY AND ALL THIRD-PARTY MATERIALS.
- The warranties set forth in Section 12(a) will not apply and will become null and void if
Licensee breaches any provision of this EULA, or if Licensee, any Authorized User, or any
other Person provided access to the Site by Licensee or any Authorized User, whether or not
in violation of this EULA:
- installs or uses the Site on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Examit in writing;
- modifies or damages the Site, or the media on which it is provided, including abnormal physical or electrical stress; or
- misuses the Site, including any use of the Site other than as specified in the Documentation or expressly authorized by Examit in writing.
- If, during the period specified in Section 12(a), any Site covered by the warranty set forth
in such Section fails to perform substantially in accordance with the Documentation, and
such failure is not excluded from warranty pursuant to the Section 12(b), Examit will,
subject to Licensee's promptly notifying Examit in writing of such failure, at its sole
- repair or replace the Site, provided that Licensee provides Examit with all information Examit requests to resolve the reported failure, including sufficient information to enable Examit to recreate such failure; or
- refund the License Fees paid for such Site prorated for the period of time of such failure of substantial performance with the Documentation, subject to Licensee's ceasing all use of and, if requested by Examit, returning to Examit all copies of the Site.
If Examit repairs or replaces the Site, the warranty will continue to run from the initial date specified on the Invoice, and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 12(c) are Licensee's sole remedies and Examit's sole liability under this EULA.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE APPLICATION AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, Examit, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, Examit PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED APPLICATION WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER APPLICATION, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Limitation of Liability. TO THE FULLEST EXTENT
PERMITTED UNDER APPLICABLE LAW:
- IN NO EVENT WILL Examit OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE APPLICATION; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS EULA, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT Examit WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL Examit'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO Examit PURSUANT TO THIS EULA FOR (i) THE APPLICATION OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
- THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE.
- Export Regulation. The Site and Documentation may be subject to the export control laws of the US, EU, and/or any other applicable jurisdiction, including without limitation the US Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Site or Documentation to, or make the Site or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by the law, rule, or regulation of any jurisdiction. The Licensee shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Site or Documentation available outside of the jurisdiction with respect to which the Invoice authorizes use of the Site.
- US Government Rights. The Site is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Site and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Confidential Information. From time to time, Examit may disclose or make available to Licensee information about its software, applications, strategies, business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as "confidential" (collectively, “Confidential Information”). Confidential Information does not include information that Licensee proves through compelling evidence met the following criteria at the time of the disclosure that is alleged to violate this EULA: (a) information that was already in the public domain; (b) information specifically known to the Licensee at the time of disclosure; or (c) information rightfully obtained by the receiving Party on a non-confidential basis from a third party that did not owe any nondisclosure or confidentiality obligations to Examit, whether by express agreement or in general under applicable law. Licensee shall not disclose Confidential Information to any person or entity, except to the Licensee’s employees who have a need to know the Confidential Information for Licensee to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, Licensee may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that any and all disclosure by Licensee pursuant to such order shall first have given written notice to Examit and made a reasonable effort to obtain a protective order; or (ii) to establish Licensee’s rights under this EULA, including to make required court filings. On the expiration or termination of the EULA, Licensee shall promptly return to Examit all copies, whether in written, electronic, or other form or media, of Confidential Information, and Licensee shall destroy all copies of Confidential Information and certify in writing to Examit that such Confidential Information has been destroyed. Licensee’s obligations of non-disclosure with regard to Confidential Information shall remain effective throughout the Term and for five years thereafter, provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined by the laws of the United States of America or any other applicable law), such obligations of non-disclosure will survive the termination or expiration of this EULA for as long as such Confidential Information remains subject to trade secret protection under US or other applicable law.
- All matters arising out of or relating to this EULA shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this EULA or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin and Travis County, Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
- If any action, suit, arbitration or proceeding is instituted to interpret, enforce, or rescind this EULA, or otherwise in connection with the subject matter of this EULA, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorney's fees and other fees, costs, and expenses of every kind incurred in connection with the action, suit, arbitration or proceeding, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.
- Examit will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Examit's reasonable control.
- All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Invoice (or to such other address as may be designated by a party from time to time in accordance with this Section 17(c)).
- This EULA, together with the Invoice, all annexes, schedules, and exhibits attached hereto, and all other documents that are incorporated by reference in this EULA or the Invoice, constitutes the sole and entire agreement between Licensee and Examit with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this EULA, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Examit's prior written consent, which consent Examit may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this EULA for which Examit's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this EULA. Any purported assignment, delegation, or transfer in violation of this Section 17(e) is void. Examit may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this EULA without Licensee's consent. This EULA is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- This EULA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this EULA.
- All provisions of this EULA that would reasonably be expected to survive the termination of this EULA will do so. The termination or expiration of this EULA for any reason, regardless of how it occurs, shall be without prejudice to any rights that shall have accrued to the benefit of a party prior to such termination or expiration. Such termination or expiration shall not relieve a party from obligations that are expressly indicated to survive the termination or expiration of this EULA.
- No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- If any term or provision of this EULA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.
- For purposes of this EULA, (a) the words “include,” “includes,” and “including” shall be automatically deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this EULA as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this EULA; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This EULA shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Invoice and all Annexes, Schedules, and Exhibits referred to in this EULA or the Invoice shall be construed with, and as an integral part of, this EULA to the same extent as if they were set forth verbatim herein.
- The headings in this EULA are for reference only and do not affect the interpretation of this EULA.
- Examit may revise and otherwise update this EULA from time to time and post a revised version of this EULA on the Site. You hereby agree to accept posting of a revised or otherwise updated EULA electronically on the Site as the actual notice of the Company to its users. Examit encourages all users to periodically review this EULA so that they are always aware of all applicable terms and conditions herein.