THIS MATH CORPORATION END USER LICENSE AGREEMENT AND THE ASSOCIATED ORDER FORM(S) (“Order Form”) BY WHICH YOU ORDERED MATHCORP SOFTWARE (COLLECTIVELY, “Agreement”) CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND MATH CORPORATION (“Mathcorp”). BY CLICKING ON OR CHECKING THE “I ACCEPT” BUTTON AS PART OF THE MATHCORP SOFTWARE (THE “Software,” AS FURTHER DEFINED BELOW) INSTALLATION OR SUBSCRIPTION ENROLLMENT PROCESS AND/OR BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE AS INSTALLED ON A COMPUTER IN YOUR COMPUTING ENVIRONMENT, OR VIA CONNECTION TO MATHCORP’S WEB SITE, YOU AS AN INDIVIDUAL AND ANY OTHER PARTY ON WHOSE BEHALF YOU ARE ACTING, E.G., YOUR EMPLOYER, ARE ACKNOWLEDGING THAT YOU HAVE READ THIS ENTIRE AGREEMENT, UNDERSTAND IT AND AGREE TO BE LEGALLY BOUND TO IT. IF YOU ARE ENTERING INTO THIS AGREEMENT TO USE THE SOFTWARE AS AN INDIVIDUAL ON YOUR OWN BEHALF, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18. IF YOU ARE ENTERING INTO THIS AGREEMENT TO USE THE SOFTWARE ON BEHALF OF ANOTHER PARTY, E.G., YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR SUCH OTHER PARTY. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.
YOU AND MATHCORP AGREE AS FOLLOWS:
1. SOFTWARE. As used in this Agreement, the term “Software” refers to the Mathcorp software which you have selected to download. The term “Software” shall also include any upgrades, modified versions or updates of the Software made available to you by Mathcorp, as well as the online/electronic documentation accompanying the version of the Software used by you (“Documentation”). The Software is deemed accepted by you upon download of the Software.
2. GRANT OF LICENSE. Subject to the terms of this Agreement, Mathcorp hereby grants you the non-exclusive, non-transferable, limited right, depending on the scope license rights purchased, to: (i) install and use the Software for your own internal use, if made available for downloading by Mathcorp, (ii) use the Software on a non-downloadable basis via connection to Mathcorp’s web site for your own internal use, if made available in such manner by Mathcorp on a subscription or other basis, and (iii) make a single additional copy of the Software for back-up or archival purposes, if the Software is made available for downloading by Mathcorp. All rights not expressly granted in this Agreement are reserved by Mathcorp. Notwithstanding the foregoing, you acknowledge and agree that, depending on the basis on which the Software selected by you is licensed and made available, certain restrictions may apply to your use of the Software.
3. LICENSE RESTRICTIONS; CONFIDENTIALITY. You acknowledge that the foregoing license extends only to your use of the features and functionality of the Software as described in the Documentation, and you agree not to reconfigure or modify the Software in order to enable features or functionality different than those described in such Documentation or available in other Mathcorp products without notifying Mathcorp and paying the applicable Software upgrade fee. You shall not: (i) reverse engineer, decompile, or disassemble the Software; (ii) modify, or create derivative works based upon, the Software in whole or in part; (iii) distribute copies of the Software; (iv) remove any proprietary notices or labels on the Software; or (v) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Software. You agree that the Software and Documentation consist of confidential and proprietary trade secrets of Mathcorp and you agree to maintain the Software’s confidentiality and not disclose it to any third party. Any violation of this Section shall immediately terminate your license to the Software.
4. SUPPORT; MAINTENANCE. “Support” means the provision by Mathcorp of telephone and/or e-mail support services to answer questions regarding the use and functions of the Software between the hours of 8:30 AM to 5:00 PM, Central Standard Time (Monday through Friday), excluding Mathcorp holidays. “Maintenance” means the provision by Mathcorp of Updates to the Software. “Updates” means upgrades, enhancements, modifications, maintenance patches and new releases of the Software, as Mathcorp may develop and make available to its customers from time to time in Mathcorp’s sole discretion. Support and Maintenance is provided free of charge for the duration of the applicable license if you subscribe to use the Software as made available on a non-downloadable basis via connection to Mathcorp’s web site. Support and Maintenance is provided free of charge for six (6) months from the date you download any downloadable version of the Software, and is renewable annually thereafter upon payment of the annual Support and Maintenance subscription fee. Support and Maintenance is provided subject to Mathcorp’s then-current Support and Maintenance policy, as posted on Mathcorp’s web site, which may be modified from time to time upon posting of such modifications. Use of any Update with or in place of the Software shall be fully governed by and subject to the terms of this Agreement relating to the use of the Software. Any version or portion of the Software replaced by an Update shall be destroyed by you and shall, upon your receipt of such Update, no longer be covered by any applicable warranty set forth in this Agreement; provided, however, that such Update shall remain covered by Mathcorp’s applicable warranties to the extent any such warranties with respect to the Software originally supplied remain in effect. Mathcorp, in its sole discretion, may discontinue providing Support and/or Maintenance for specific operating system versions or other versions of the Software. Mathcorp may cease providing Support and/or Maintenance entirely upon prior written notice to you, provided that in such event, Mathcorp shall refund the prorated portion of Support and/or Maintenance fees already paid by you for any period during which Mathcorp shall no longer provide such services and for which you have already paid.
5. THIRD PARTY SOFTWARE. Certain third party software included with the Software may be subject to additional terms and conditions imposed by Mathcorp’s third party licensor(s). You agree to abide by such terms and conditions. Such terms and conditions are contained in the “About” pages of the Software and are deemed incorporated herein by reference.
6. PROPRIETARY RIGHTS AND OWNERSHIP. All rights, title and interest in and to the Software and all aspects of Mathcorp’s web site(s), including all copyrights, patent rights, trade secrets, trademarks, service marks, source code, features, functionality and other intellectual property and other proprietary rights relating thereto, are and shall remain with Mathcorp and/or its licensors and constitute Confidential Information of Mathcorp. You acknowledge that no such rights, title or interest in any of the foregoing are granted under this Agreement except for the limited license rights granted herein, which rights are subject to termination in accordance with this Agreement. All elements of the Software and Mathcorp web site(s) are protected by copyright law and international treaties and constitute trade secrets of Mathcorp. Copyright Ó Math Corporation. All rights reserved. Upon termination of this Agreement for any reason, all license rights granted to you hereunder shall terminate, and all rights to use the Software shall cease.
7.1 LIMITED WARRANTY. Mathcorp warrants to you that the encoding of the Software on the media on which the Software is furnished will be free from defects in material and workmanship, and that the Software shall substantially conform to its descriptions in the Documentation, as it exists at the date of delivery, for a period of ninety (90) days from the date you either download the Software, or subscribe to use it via connection to Mathcorp’s web site. Mathcorp’s entire liability and your exclusive remedy shall be, at Mathcorp’s option, either: (i) return of the price paid to Mathcorp for the Software, resulting in the termination of this Agreement, or (ii) repair or replacement of the Software or media (if applicable) that does not meet this limited warranty. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. This warranty gives you specific legal rights. You may have other rights that vary from state to state.
7.2 GENERAL. Mathcorp does not guarantee that use of the Software or Support and Maintenance Services will be uninterrupted or error-free. You acknowledge that performance of the Software and Support and Maintenance Services may be affected by any number of factors, including without limitation, technical failure of the Software, the acts or omissions of third parties and other causes reasonably beyond the control of Mathcorp. Certain features of the Software may not be forward-compatible with future versions of the Software and use of such features with future versions of the Software may require purchase of the applicable future version of the Software.
7.3 NO ADDITIONAL WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 7.1, YOU AGREE THAT MATHCORP AND ITS LICENSORS HAVE MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO YOU REGARDING THE SOFTWARE AND SUPPORT AND MAINTENANCE SERVICES AND THAT THE SOFTWARE AND SUCH SERVICES ARE BEING PROVIDED TO YOU “AS IS,” WITHOUT WARRANTY OF ANY KIND. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND SUPPORT AND MAINTENANCE SERVICES IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 7.1, SHOULD THE SOFTWARE AND/OR SUPPORT AND MAINTENANCE SERVICES PROVE DEFECTIVE, YOU (AND NOT MATHCORP OR ANY DISTRIBUTOR) ASSUME THE ENTIRE COST OF ALL NECESSARY REPAIRS.
7.4 DISCLAIMER. MATHCORP DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY, COMPLETENESS OF RESPONSES, AVAILABILITY, RELIABILITY, RESULTS, LACK OF NEGLIGENCE, LACK OF WORKMANLIKE EFFORT, QUIET ENJOYMENT OR QUIET POSSESSION, AND NON-INFRINGEMENT. THIS WARRANTY DISCLAIMER AFFECTS YOUR LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. LIMITATION ON LIABILITY. IN NO EVENT WILL MATHCORP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, THE SOFTWARE OR ANY SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING LOST PROFITS, OR FOR LOSS OF OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER MATHCORP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MATHCORP’S MAXIMUM LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE LICENSE FEES RECEIVED BY MATHCORP UNDER THIS AGREEMENT FOR THE PARTICULAR SOFTWARE WHICH CAUSED THE DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. TERMINATION. This Agreement shall terminate automatically if you fail to comply with the terms of this Agreement. No notice shall be required from Mathcorp to effect such termination. You may also terminate this Agreement at any time by notifying Mathcorp in writing of termination. Upon any termination of this Agreement, you must uninstall and destroy all copies of the Software. Termination of this Agreement shall not relieve you of your obligation to pay Mathcorp any amount that has accrued or become payable at or prior to the date of termination, or which may later become payable pursuant to the terms hereof. Termination of this Agreement shall be in addition to, and not in lieu of, any other remedies available to Mathcorp.
10. COMPLIANCE WITH EXPORT CONTROL LAWS; U.S. GOVERNMENT RIGHTS.
10.1 COMPLIANCE WITH EXPORT CONTROL LAWS. You acknowledge that the Software is subject to the export control laws and regulations of the United States (“U.S.”) and agree to abide by those laws and regulations. Under U.S. law, the Software may not be downloaded or otherwise exported, reexported, or transferred to restricted countries, restricted end-users, or for restricted end-uses. The U.S. currently has embargo restrictions against Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. The lists of restricted end-users are maintained on the U.S. Commerce Department’s Denied Persons List, the Commerce Department’s Entity List, the Commerce Department’s List of Unverified Persons, and the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons. In addition, the Software may not be downloaded or otherwise exported, reexported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production or use of missiles or support of missile projects; and (3) the design, development, production, or use of chemical or biological weapons. By downloading or using the Software, you are agreeing to the foregoing. You are also warranting that you are not (i) located in, or a resident or national of, a restricted country; (ii) on any of the U.S. lists of restricted end-users; or (iii) engaged in any activity related to weapons of mass destruction. You understand that the requirements and restrictions of U.S. law as applicable to you may vary depending on the software downloaded and may change over time, and that, to determine the precise controls applicable to the software, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Foreign Assets Control Regulations.
10.2 U.S. GOVERNMENT RIGHTS. You may not remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and any documentation licensed in this Agreement are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. The manufacturer of the Software is Math Corporation, 610 South Street, Box 644, Green Lake, WI 54941.
11. NOTICES. You consent to Mathcorp providing you any information or notices required under this Agreement (“Notices”) in electronic form. Mathcorp may provide Notices to you (i) via e-mail at the e-mail address you specified in the Order Form; (ii) by access to a Mathcorp web site that will be designated in an e-mail notice sent to you at the time the information is available, or (iii) by access to a Mathcorp web site that will be generally designated in advance for such purpose. Notices provided to you via e-mail will be deemed given and received on the transmission date of such e-mail. Mathcorp, at its option, may choose to provide you with Notices by the following alternative means, and you may provide Mathcorp with Notices by the following means, whereupon Notices shall be deemed received (iv) when delivered personally; (v) upon transmittal when sent by confirmed facsimile (followed by the actual document sent by reputable overnight courier specifying next day delivery); (vi) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (vii) one (1) day after deposit with a commercial express courier specifying next day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt. Either party may from time to time change its address to which Notices may be delivered hereunder by notifying the other party in accordance with this provision.
12. MISCELLANEOUS. The Order Form, including all terms and conditions contained therein and information submitted by you on the Order Form, is hereby incorporated into and made part of this Agreement. In the event of any conflict between the provisions of the Order Form and the provisions contained in the body of this Agreement, the provisions contained in the body of this Agreement shall govern unless stated to the contrary in the Order Form. Use of the Software is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including this paragraph. This Agreement is not assignable, transferable or sublicensable by you except with Mathcorp’s prior written consent. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Mathcorp as a result of this Agreement or use of the Software. Mathcorp’s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Mathcorp’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Software or information provided to or gathered by Mathcorp with respect to such use. If any part of this Agreement or specific language is determined to be invalid or unenforceable pursuant to applicable law, including the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision or the specific language thereof will be deemed superseded by a valid, enforceable provision or specific language that most closely matches the intent of the original provision or language and the remainder of the Agreement shall continue in effect. Except for the failure to make payments when due, neither party to this Agreement will be liable to the other by reason of failure in performance of this Agreement if the failure arises out of any cause beyond the reasonable control of that party. No cause of action arising out of the use of the Software or this Agreement may be instituted by you more than one (1) year after the cause of action first accrues. The terms “you” and “your” include individuals, corporations, partnerships, trusts, other legal entities, organizations and associations, and any government or governmental agency or authority. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written.” Notice provide by electronic means, to the extent permitted by this Agreement, shall be deemed to constitute written notice. Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel and the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any other document executed and delivered by either party in connection with the transactions contemplated by this Agreement. The captions in this Agreement are for convenience of reference only and shall not be used to interpret this Agreement. No provision hereof shall be deemed waived by Mathcorp unless such waiver shall be in writing and signed by Mathcorp or a duly authorized representative of Mathcorp. Both parties agree that this Agreement, the Order Form and any other documents expressly incorporated herein, contain the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in writing signed by both parties, except as otherwise provided herein. Upon expiration or termination of this Agreement for any reason, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force and effect, including all provisions protecting the intellectual property of Mathcorp and warranty disclaimers and limitations on liability. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN, U.S.A. YOU HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION, INCLUDING PERSONAL JURISDICTION, AND VENUE OF THE STATE AND FEDERAL COURTS IN GREEN LAKE COUNTY, WISCONSIN, U.S.A. IN ALL DISPUTES ARISING OUT OF OR RELATING TO THE USE OF THE SOFTWARE AND THIS AGREEMENT. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. Mathcorp reserves the right to increase any price stated in any Order Form by no more than ten percent (10%) each year. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.