END USER LICENSE AGREEMENT

BOOST E LEARNING LLC

IMPORTANT - READ CAREFULLY: This End‑User License Agreement (the “EULA”) is a legal contract between You (“You” and “Your” includes a person and/or an individual entity) and Boost e Learning LLC (“Boost e Learning”) for the Boost e Learning software product identified above, which software embodies inventions and know-how, computer software with object code component parts, all other component parts, the associated media, any printed materials, and any “online” or electronic documentation, as applicable (collectively, the “Software”).

 

By clicking the [ENTER TO ACCEPT] icon below, or by installing, copying or otherwise using the Software, You agree to be bound by the terms and conditions of this EULA (including, without limitation, the disclaimer of warranty, limitation of liability and indemnification provisions below. If You do not agree to the terms and conditions of this EULA, do not install or use the software. Exit now. We will refund the full amount of any payment You made for the Software.

 

1. License.

a. License Grant. Subject to Your payment of all applicable license fees and compliance with all of the terms and conditions of this EULA, Boost e Learning grants to You a limited, non-sublicensable, non-exclusive, non-transferable right to use one copy of the above specified version of the Software for internal use, in the United State only.

b. Use on Designated Computer. You may install the single registered copy of the Software on one hard disk or other storage device for one computer (the “Designated Computer”), and You may access and use the Software only on the Designated Computer. If You are an entity rather than an individual, You may authorize the personnel associated with Your business to use the Software, but only one person at a time, and only on the Designated Computer. The Software is “in use” when it is loaded into the temporary memory (i.e., random‑access memory or RAM) of the computer.

c. Backup Copy. This license permits You to make one copy of the Software solely for backup or archival purposes, provided that the copy contains the same proprietary notices that appear on and in the Software.

2. Maintenance and Support Services. Your license fee includes upgrades, patches and bug fixes, if any, that Boost e Learning may release to this version of the Software. Maintenance and support services are available at an additional cost to You under a separate written agreement. All services, if any, will be governed by the terms and conditions set forth in the separate written agreement, which may incorporate by reference Boost e Learning’s support policies described in the online documentation or other materials provided by Boost e Learning. Any maintenance, upgrades and other supplemental software code provided to You by Boost e Learning will be considered part of the Software and therefore subject to the terms and conditions of this EULA.

3. Ownership Rights. The Software is protected by worldwide patent, copyright, trade secret, trademark and other intellectual property laws, and international treaty provisions. All right, title and interest, including all patents, copyrights, trade secrets, trademarks and other intellectual property rights in and to the Software are owned by Boost e Learning and/or its licensors and suppliers. This EULA does not transfer to You any ownership interest of any kind in the Software or the intellectual property rights in the Software. This EULA gives You only a limited license to use the Software in compliance with the terms and conditions contained in this EULA.

4. Restrictions and Obligations.

a. You may not (i) remove any proprietary notices or labels on the Software, (ii) reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or modify or create a derivative work based upon the Software, in whole or in part, or (iii) apply any techniques to derive any trade secrets embodied in the Software, except to the extent any of these restrictions is expressly prohibited by applicable law.

b. You may not (i) rent, lease, sublicense, loan, sell, transfer or otherwise make available to others either the Software or a copy of the Software, (ii) permit any parent, affiliate, subsidiary or any other third party to benefit from the use or functionality of the Software, either directly or indirectly through a facility management, timesharing, service bureau or any other arrangement, or otherwise transfer any of the rights granted to You under this EULA, or (iii) assign, by operation of law or otherwise, this EULA or any of Your rights under this EULA, or delegate Your obligations under this EULA to any third party without Boost e Learning’s prior written consent.

c. You may use the Software only on hardware that is under Your exclusive control. You may not duplicate or copy any portion of the Software except as expressly permitted under this EULA. You will take all appropriate actions to ensure that the Software is not copied by You (except as permitted under the terms of this EULA) or any third parties. You will secure and protect the Software and copies thereof from disclosure and will take such actions with Your employees and other persons who are permitted access to the Software (or copy thereof) as may be necessary to satisfy Your obligations under this EULA. Prior to disposing of any computer medium, computer memory or data storage apparatus, You will ensure that all copies of the Software have been erased or otherwise destroyed. In the event You become aware that any Software or copy thereof is being used in a manner not permitted by this EULA, You will immediately notify Boost e Learning and use reasonable efforts to terminate such impermissible use.

d. You may not use the name “Boost e Learning” or “Boost e Learning LLC” in any advertising, promotional, sales literature or fundraising documents without prior written consent from an authorized representative of Boost e Learning.

e. All rights not expressly set forth hereunder are reserved by Boost e Learning. Boost e Learning reserves the right to periodically conduct audits upon advance written notice to verify Your compliance with this EULA. Boost e Learning will have prompt and reasonable access to the Software at all times and may take immediate possession of the Software upon termination or expiration of this EULA or other associated license.

5. Term.

a. This EULA will commence after Your payment of the license fee and will continue until You give written notice of termination to Boost e Learning in accordance with the notice provisions set forth in Section 9 below or until Boost e Learning terminates this EULA in accordance with the terms of this EULA, whichever first occurs.

b. Boost e Learning’s Right to Terminate. Boost e Learning has the right to terminate this EULA immediately upon the occurrence of any violation of Sections 1 or 3 above. If this EULA was granted to You under conditions not requiring Your payment of a license fee, Boost e Learning reserves the right to terminate this EULA for any reason at any time.

c. Obligations on Termination. Upon termination of this EULA, You must promptly destroy all copies of the Software, and Boost e Learning may suspend or deactivate Your use of the Software with or without notice.

d. Survival. Sections 4, 5, 6, 8 and 9 will survive termination of this EULA.

6. Submissions. Technical information You provide to Boost e Learning as part of the registration of Your license to the Software, or in connection with the Support Services, if any, may be used by Boost e Learning for any purposes including, but not limited to, for product support and development. Any written or oral materials or information You submit to Boost e Learning, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, will be deemed non-confidential upon submission. You grant to Boost e Learning and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, use, copy, transmit, distribute, license, create derivative works of, commercialize, display and perform such submissions with or without the Software.

7. Disclaimer of Warranty. To the maximum extent permitted by applicable law, the following will apply to this EULA:

a. BOOST E LEARNING WARRANTS ONLY THAT FOR A PERIOD OF SIXTY (60) DAYS FROM THE COMMENCEMENT OF THIS EULA (THE “WARRANTY PERIOD”) THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE FUNCTIONAL SPECIFICATIONS CONTAINED IN THE DOCUMENTATION. ANY WRITTEN OR ORAL INFORMATION OR REPRESENTATIONS PROVIDED BY BOOST E LEARNING’S AGENTS, EMPLOYEES, CONSULTANTS OR SERVICE PROVIDERS WITH RESPECT TO THE USE OR OPERATION OF THE SOFTWARE WILL IN NO WAY INCREASE THE SCOPE OF THE WARRANTY STATED IN THIS SECTION 7.a.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOOST E LEARNING AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

b. WITHOUT LIMITING THE FOREGOING PROVISIONS, (i) YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE, AND (ii) BOOST E LEARNING MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS.

c. BOOST E LEARNING AND ITS LICENSORS DO NOT WARRANT THE VALIDITY OF ANY PATENTS OR COPYRIGHTS EMBODIED OR INCORPORATED IN THE SOFTWARE OR THAT THE PRACTICE UNDER SUCH PATENTS OR COPYRIGHTS SHALL BE FREE OF INFRINGEMENT.

8. Remedies and Limitation of Liability.

a. For all nonconformities to the warranty as stated at Section 7.a reported by You during the applicable Warranty Period, Boost e Learning shall, upon Your written request, make reasonable efforts to correct any reproducible errors in the Software which cause the Software not to perform substantially in accordance with the warranty. Boost e Learning’s entire liability and Your exclusive remedy WITH RESPECT TO ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 7.a above WIll be limited to CORRECTING SUCH REPRODUCIBLE ERRORS, replacING Your copy of the Software with another copy or refundING the software license fees PAID BY you.

b. EXCEPT AS SPECIFIED IN SECTION 7.a ABOVE, YOU EXPRESSLY WAIVE ALL RIGHTS TO MAKE ANY CLAIM WHATSOEVER AGAINST BOOST E LEARNING OR ITS LICENSORS FOR MISREPRESENTATION OR FOR BREACH OF WARRANTY OF ANY KIND RELATING TO THE SOFTWARE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), CONTRACT, OR OTHERWISE, WILL EITHER BOOST E LEARNING OR ITS LICENSORS BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IF BOOST E LEARNING OR ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL EITHER BOOST E LEARNING OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LICENSEE FEES RECEIVED FROM YOU. THIS SECTION 8 WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND WILL NOT APPLY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION.

9. General Provisions.

a. This EULA is governed by the laws of the United States and the State of Washington, without reference to conflicts of law principles. In the event of a dispute or legal action between You and Boost e Learning, You hereby agree to personal jurisdiction and service of process and venue in the Federal District Court for the Western District of Washington or the Washington Superior Court of King County, and You hereby waive any objections to any of the foregoing. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

b. This EULA sets forth all rights for the use of the Software and is the entire agreement between You and Boost e Learning. This EULA supersedes any other communications with respect to the Software and any and all prior end user license agreements. This EULA may not be modified except by a written addendum issued by a duly authorized representative of Boost e Learning. No provision hereof will be deemed waived unless such waiver is in writing and signed by Boost e Learning or a duly authorized representative of Boost e Learning.

c. If any party employs attorneys to enforce any rights arising out of or relating to this EULA, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs, and other expenses.

d. You acknowledge that a breach of this EULA would cause irreparable harm and significant injury to Boost e Learning that may be difficult to ascertain and that a remedy at law would be inadequate. You agree that Boost e Learning will have the right to seek and obtain immediate injunctive relief to enforce the obligations under the EULA in addition to any other rights and remedies it may have.

e. You may not (i) assign or transfer this EULA or any rights hereunder or (ii) delegate any duties or obligations hereunder, without the prior written consent of Boost e Learning.

f. If any provision of this EULA is held invalid or unenforceable, the enforceability of the remaining provisions will in no way be affected or impaired thereby.

g. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by DHL, FedEx or other internationally recognized courier upon written verification of receipt; or (iii) by facsimile transmission upon acknowledgment of receipt of electronic transmission. Notice to Boost e Learning shall be sent to the addresses set forth below or to such other address as Boost e Learning may specify in writing in accordance with this Section 9.g. Notice to You shall be sent to the address set forth on the most recent purchase order received from You or to such other address as You may specify in writing in accordance with this Section 9.g.

10. Boost e Learning Customer Contact. If You have any questions concerning these terms and conditions, or if You would like to contact Boost e Learning for any other reason, please call 206.839.8573 or fax 206.839.8582 or e‑mail us at info@boostelearning.com.

You may also reach us at http://www.boostelearning.com.