(Submission of this form binds the above person to these terms)
LEARNKEY OnlineExpert ©
WEBSITE USER CLICK-WRAP LICENSE AGREEMENT
READ THIS AGREEMENT CAREFULLY. IF YOU AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH BELOW AND ARE WILLING TO BE LEGALLY BOUND BY THEM, PRESS THE "I Accept" BUTTON TO CONTINUE WITH THE INITIAL LOGIN PROCEDURE. IF YOU DO NOT COMPLETELY AGREE TO SUCH TERMS AND CONDITIONS, PRESS THE EXIT BUTTON TO TERMINATE THE INITIAL LOGIN PROCEDURE.
1. Definitions. As used herein, the following terms shall have the indicated meanings: (i) "Course" refers to the internet-based e-learning technology, online learning solution, self-paced training class, or information or computer technology certification training class, as applicable, collectively embodied by the Program and Documentation; (ii) "Documentation" refers to any and all manuals, guides, drawings, training materials, software (other than the Program), graphics, text, workbooks, screen displays, printer output, audio materials, video materials, educational materials, and/or any other materials, in whatever form, that teach, explain, demonstrate, or otherwise provide instructions and/or guidance concerning access to, installation of, and/or use of, the Program; (iii) "Program" refers to the OnLineExpert course content (as such may be revised and/or supplemented from time to time by LEARNKEY, Inc. ("LEARNKEY")), MediaPoints� software, plug-ins, ideas, concepts, expressions, images, animations, video material, audio material, music, training materials, tutorials, methods, designs, management systems, tests, and other software made accessible to You by LEARNKEY through the website www.onlineexpert.com and/or other websites which LearnKey may designate in its sole discretion (collectively, the "OnLineExpert Websites"), and/or provided to You by LEARNKEY in the form of computer program products (such as, but not limited to, magnetic media, optical media, electronic media, or other machine-readable media); (iv) "Course," "Program", and "Documentation" also include any portion(s) thereof; (v) "LearnKey Materials" include the Course, Program, and Documentation; and (vi) "You" (and its forms "Your" and "Yours") includes, jointly and severally, the purchaser, owner, installer, and user, of the electronic and/or other media containing or embodying the LearnKey Materials, as well as the user of the LearnKey Materials located on the OnLineExpert Websites.
2. LEARNKEY Ownership. You hereby understand, acknowledge, and agree that: (i) LEARNKEY and/or its suppliers, agents, and contractors, as may be applicable, is/are the exclusive owner(s) of all right, title and interest in and to the LearnKey Materials, and all works derived from the LearnKey Materials, wherein such right, title, and interest includes, but is not limited to, the rights provided by patent, copyright, trademark, trade secret, and trade dress laws, statutes, and international treaties and conventions, both in the United States and throughout the world; (ii) notwithstanding anything to the contrary herein, LEARNKEY and/or its suppliers, agents, and contractors, as applicable, owns and hereby retains all right, title, and interest in and to (a) any and all improvements, modifications or amendments that You make to the LearnKey Materials, (b) any and all works prepared by You and/or at Your direction, and derived either in whole or in part from the LearnKey Materials, and (c) any copies of the LearnKey Materials made by You, or caused or permitted to be made by You; and (iii) You do not, by virtue of Your purchase and/or use of the electronic and/or other media containing or embodying the LearnKey Materials, thereby acquire any ownership, rights, title, or interest, of any kind in the LearnKey Materials.
3. Grant of License. Subject to the terms and conditions of this Agreement, LEARNKEY hereby grants to You a non-exclusive and non-transferable license to access and use the LearnKey Materials located at the OnLineExpert Websites and to install and use the MediaPoints� software, and any other software provided to You by LEARNKEY hereunder as a part of the LearnKey Materials (collectively, the "Licensed Software"), on a single CPU. You may make one (1) archive copy of the Licensed Software, provided however, that no portion of such archive copy shall be stored at any time on the hard drive of any computer. All rights not explicitly granted to You by LEARNKEY hereunder are retained solely and exclusively by LEARNKEY and/or its suppliers, agents, and contractors, as may be applicable, and neither You nor any other party acquires any ownership interest of any kind in any of the LearnKey Materials as a result of the grant made to You hereunder. Any violation of the terms or conditions of this Section 3 of the Agreement shall constitute a material breach of this Agreement.
4. Restrictions on Your use of the LearnKey Materials. Except as may be expressly permitted in this Agreement, You shall not, nor shall You cause or permit any third party to: (i) modify or create any derivative works of the LearnKey Materials; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for any of the LearnKey Materials; (iii) attempt to descramble a scrambled work, decrypt an encrypted work, or otherwise avoid, bypass, remove, deactivate or impair any technological protection measure employed by LEARNKEY to protect the LearnKey Materials; (iv) redistribute, encumber, sell, rent, reproduce, lease, sublicense, assign, or transfer the LearnKey Materials, or use the LearnKey Materials in a timesharing or service bureau arrangement, or transfer or attempt to transfer any of Your rights, duties, and obligations hereunder, and any such sublicense, assignment, or other transfer of any of Your rights, duties, or obligations hereunder shall be void ab initio; (v) copy any of the LearnKey Materials; (vi) remove or alter any trademark, logo, copyright or other proprietary notice, legend, symbol or label in or on the LearnKey Materials or copies thereof; (vii) create or alter any tables or reports relating to any database portion of the LearnKey Materials; (viii) use any databases provided for use with any LearnKey Materials except in conjunction with the relevant LearnKey Materials; (ix) exercise any of the rights granted to You hereunder in any way harmful or adverse to the economic, or other, interests of LEARNKEY; (x) copy or mimic the expression of the LearnKey Materials or any portion thereof, or prepare, use, offer, sell or distribute any product or service in competition with, or otherwise harmful to the business interests of, LEARNKEY; (xi) use the LearnKey Materials in conjunction with the preparation of any commercial training materials, and/or the preparation or conduct of any commercial training course; (xii) use the LearnKey Materials in any form or manner that infringes LEARNKEY's rights or the rights of any third party; (xiii) distribute or transmit the LearnKey Materials or derivatives thereof; (xiv) interfere with, or modify, in any way, the operation, content, and/or functionality of any of the OnLineExpert Websites; or (xv) share Your password or Your other OnLineExpert Websites logon information with any other party.
5. Inspection. LEARNKEY reserves the right, upon two (2) working days notice, to inspect Your installation and use of the LearnKey Materials in order to verify and confirm Your compliance with the terms of this Agreement. Such inspection shall occur during normal business hours and at LEARNKEY's expense.
6. Limited Warranty. The following warranty provisions shall apply: (i) LEARNKEY warrants that under normal use for a period of ninety (90) days from Your payment of Your purchase price, (a) the media containing the Licensed Software will be free from defects in materials and workmanship and the Licensed Software will execute its programming instructions when properly installed, used, and maintained in conjunction with a properly configured computer, and (b) the LearnKey Materials located on the OnLineExpert Websites and accessed and used by You will execute their programming instructions when properly accessed and used in conjunction with a properly configured computer and communication device (the "Limited Warranty"); (ii) in the event the media containing or embodying the Licensed Software are defective, You shall assume the entire cost of any and all service, repair, or correction of any damage or injury arising from such defects; (iii) The Limited Warranty is the only warranty of any kind given by LEARNKEY under this Agreement and no oral or written information or advice given by LEARNKEY, its agents, employees, or contractors shall create a warranty or in any way increase the scope of the Limited Warranty, nor may You may rely on any such information or advice, and You further agree that such Limited Warranty is the complete and exclusive statement of agreement between You and LEARNKEY and supersedes any other agreements, oral or written, and any other communications between You and LEARNKEY relating to the subject matter of the Limited Warranty; (iv) EXCEPT AS PROVIDED HEREIN, THE LEARNKEY MATERIALS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (v) LEARNKEY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF USE, OF THE LEARNKEY MATERIALS OR THE ONLINEEXPERT WEBSITES IN TERMS OF VALIDITY, ACCURACY, COMPLETENESS, RELIABILITY OR OTHERWISE, NOR DOES LEARNKEY WARRANT, GUARANTEE, OR REPRESENT THAT THE FUNCTIONS CONTAINED IN THE LEARNKEY MATERIALS OR THE ONLINEEXPERT WEBSITES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM OR THE ONLINEEXPERT WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT YOU WILL PASS ANY CERTIFICATION COURSE OR OTHER COURSE AS A RESULT OF HAVING USED THE LEARNKEY MATERIALS. ACCORDINGLY, THE ENTIRE RISK OF THE RESULTS, OPERATION, AND PERFORMANCE OF THE LEARNKEY MATERIALS AND THE ONLINEEXPERT WEBSITES IS ASSUMED BY YOU, AND NEITHER LEARNKEY, NOR ITS AGENTS, EMPLOYEES, OR CONTRACTORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER DAMAGES OF ANY KIND ARISING OUT OF THE OPERATION OF THE LEARNKEY MATERIALS OR THE ONLINEEXPERT WEBSITES, THE USE OF, OR INABILITY TO ACCESS AND/OR USE, THE LEARNKEY MATERIALS, THE ONLINEEXPERT WEBSITES, OR ANY OTHER LEARNKEY WEBSITE, EVEN IF LEARNKEY HAS BEEN ADVISED OF THE POSSIBILITY OR PRIOR OCCURRENCE OF SUCH DAMAGES; and (vi) some states do not allow the exclusion of implied warranties or the limitations or exclusion of liability for incidental or consequential damages, so the above exclusion may not apply to You. The Limited Warranty gives You specific legal rights, and You may also have other rights that vary from state to state.
7. Remedies. Under the terms of this Agreement, LEARNKEY's entire liability and Your exclusive remedy shall be: (i) with respect to any and all media provided to You hereunder by LEARNKEY, the replacement of any media not complying with the Limited Warranty and that is returned to LEARNKEY with a copy of Your purchase receipt, and if LEARNKEY is unable to deliver a replacement copy of any such media that is free of defects in materials or workmanship, You may terminate this Agreement by returning the LearnKey Materials to LEARNKEY for a full refund of Your purchase price; and (ii) with respect to the LearnKey Materials located on the OnLineExpert Websites, replacement of the Course with another LearnKey product or service selected by You and having a value the same as, or less than, the price that You paid for the Course, as such is evidenced by Your purchase receipt.
8. Term and Termination. The Agreement is effective until terminated. You may terminate this Agreement at any time by destroying the Licensed Software and Documentation, together with all copies thereof, and ceasing from using the LearnKey Materials in any manner. Immediately upon any termination of this Agreement, the rights granted to You hereunder revert completely to LEARNKEY. LEARNKEY may, in its sole discretion, terminate this Agreement and/or cancel or suspend Your access to the LearnKey Materials if You fail to comply with any term or condition of this Agreement. In such event, no notice shall be required by LEARNKEY to effect such termination. Such termination shall be without prejudice to any other remedy to which LEARNKEY may be entitled in equity or under applicable law, statute, or regulation. Upon termination of this Agreement, for whatever reason, You agree to immediately destroy the Licensed Software and Documentation together with all backup copies, modifications, printed or written materials, and merged portions in any form, or return the same to LEARNKEY at Your expense and within ten (10) working days of such termination. You further agree to provide written certification to LEARNKEY, within ten (10) working days of any termination, that You have fully complied with the requirements of this Section 8. Notwithstanding the termination of this Agreement, for any reason, Your duties and obligations with respect to LEARNKEY's rights and/or the rights of its suppliers, agents, and contractors, as applicable, in the LearnKey Materials, as provided for herein, shall continue in effect.
9. Questions. All questions concerning this Agreement may be directed to LEARNKEY at:
Attn: Licensing Department
35 North Main Street
St. George, UT 84770
10. Jurisdiction and Disputes. This Agreement shall be governed by the laws of the State of Utah. All disputes concerning this Agreement shall be resolved in the applicable state or federal courts of the State of Utah. You hereby consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
11. Integration. This Agreement constitutes the entire understanding of LearnKey and You with regard to the matters contemplated hereby, and is intended as a final expression of the agreement between You and LearnKey. This Agreement shall not be modified or amended except in writing signed by You and LearnKey and specifically referring to this Agreement. This Agreement shall take precedence over any other documents or materials, including documents and materials on the OnLineExpert Websites, that may be in conflict herewith. If, for any reason, any provision of this Agreement is found to be unenforceable, such provision shall be deemed to prohibit such activity to the extent it is found to be enforceable and other provisions of this Agreement shall be unaffected to the extent permitted by law.
BY PRESSING THE "I ACCEPT" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.