HIGHER LEARNING TECHNOLOGIES INC.
IMPORTANT: PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY. THIS DOCUMENT IS A LICENSE AGREEMENT BETWEEN YOU ENTERING INTO THIS AGREEMENT ("LICENSEE") AND HIGHER LEARNING TECHNOLOGIES INC. ("HLT") FOR THE USE OF HLT APP (AS DEFINED HEREIN).
BY HAVING DOWNLOADED AND MAKING ANY USE OF THE HLT APP, LICENSEE (A) ACCEPTS THIS AGREEMENT WHEREBY LICENSEE AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND (B) REPRESENTS AND WARRANTS THAT LICENSEE HAS FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT. IF LICENSEE DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MUST DELETE, AND MAY NOT OTHERWISE ACCESS, THE HLT APP.
LICENSEE FURTHER AGREES THAT THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND HLT, AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
LICENSEE REPRESENTS THAT HE OR SHE IS OVER TWENTY-ONE (21) YEARS OF AGE AND HAS LEGAL CAPACITY AND AUTHORITY TO BE BOUND TO THE TERMS OF THIS AGREEMENT.
* * *
TERMS AND CONDITIONS
Definitions. As used herein, the following terms have the following meanings:
"Agreement" means this License Agreement between Licensee and HLT.
"HLT App" means the software application, the contents therein and all versions thereof made available for purchase by HLT to Licensee located at www.builtbyhlt.com or through the Apple App Store, GooglePlay App Store, or any other marketplace through which the HLT App is sold.
"Fee" means the fee paid by Licensee for downloading the HLT App.
Grant of License. THIS IS A LICENSE, NOT A SALE. Subject to the terms and conditions of this Agreement, and upon payment of the Fee, HLT hereby grants to Licensee, and Licensee hereby accepts, a limited, non-exclusive, non-transferable, non-sublicenseable license to (i) download the HLT App and (ii) use the HLT App solely for the Licensee's own internal use, subject to this Agreement ("License"). If there is any doubt as to whether or not a proposed use of the HLT App is permitted by the terms of this Agreement, Licensee should contact HLT for guidance.
Payment of License. As consideration for the License granted herein, Licensee shall have paid the Fee by credit card prior to the download of the HLT App as the commencement of any use of the HLT App.
Restrictions and Covenants of Licensee.
Licensee shall adopt and enforce such internal policies, procedures, and monitoring mechanisms as are necessary to ensure that the HLT App is used and accessed only by Licensee and only in accordance with the terms of this Agreement.
Licensee shall NOT do or permit others to do any of the following: (i) use, copy, modify, sell, sublicense, rent, lease, transfer, assign, resell, or distribute or otherwise disseminate the HLT App, except as expressly and specifically authorized herein; (ii) permit any party to use or have access to the HLT App by any means; (iii) use any part of the HLT App to feed another system in any form, (iv) use any data extraction or content extraction software programs in conjunction with the HLT App, or use any software programs that perform automatic downloading, copying or printing to extract data or information from the HLT App; or (v) modify, translate, reverse engineer, disassemble, or decompile the HLT App in any way. Licensee shall take all steps necessary to ensure that no person or entity shall have unauthorized access to the HLT App.
The HLT App is intended for use by Licensee only. Nothing in this Agreement should be construed to grant to any other party any right to use, distribute, extract, export, or download any portion of the HLT App. Licensee understands and acknowledges that it is responsible for maintaining the security of any usernames and passwords provided to it by HLT, and for preventing unauthorized use of the HLT App by third parties.
Licensee shall not, and shall not permit others to, remove any patent, trademark, copyright, restricted rights, limited rights, proprietary rights or confidentiality notice included in the HLT App.
In no event shall Licensee access or otherwise use the HLT App to develop a product, program, or resource that provides similar functionality or is otherwise similar to the HLT App, whether for internal use or for the use of other agencies or third parties. Licensee shall not sell, license, or distribute any of the HLT App to third parties or use any of the HLT App as a component of or as a basis for any material offered for sale, license, or distribution.
Ownership. Licensee acknowledges and agrees that all right, title, interest, and ownership in and to the HLT App and any copies, versions or updates of the HLT App are owned by HLT and as between HLT and Licensee, HLT shall own and hold all intellectual property rights pertaining thereto. The rights granted herein do not constitute a sale of the HLT App, and this Agreement does not provide Licensee with title or ownership to the HLT App, but only a limited right of use in accordance with the terms of this Agreement. No implied licenses shall flow from this Agreement. All rights not expressly granted herein are reserved by HLT.
Automatic Updates. Licensee acknowledges that in order to protect the accuracy and integrity of certain third party content, to install additional features and to correct any defects in the HLT App software, HLT and/or its licensors may provide for software updates that will be automatically downloaded and installed on Licensee's devices that have downloaded the HLT App ("Devices"). Such updates may impair the HLT App (and any other software on your Devices).
Term. This Agreement and the licenses granted hereunder shall take effect upon the date of the download and installation of the HLT App by the Licensee (the "Effective Date") and shall continue unless terminated in accordance with the terms of this Agreement.
Termination. Unauthorized use or copying of the HLT App or otherwise failing to comply with the terms and conditions of this Agreement shall result in the immediate termination without notice of this Agreement and the license granted hereunder and will entitle HLT to other legal remedies. Licensee acknowledges that, in the event of its breach of this Agreement, HLT will not have an adequate remedy in money or damages, and that HLT will therefore be entitled to obtain an injunction against such breach from a court of competent jurisdiction. HLT's right to obtain injunctive relief shall not limit its rights to seek further remedies. HLT may, at its sole option and without any obligation to do so, notify Licensee of any breach and specify a period of time within which Licensee must cure said breach. Upon expiration or termination of this Agreement for any reason whatsoever: (i) Licensee must immediately cease using the HLT App and (ii) all of the rights granted hereunder shall immediately cease. In the event of the expiration or a termination of this Agreement for any reason whatsoever, the provisions regarding limitation of liability and indemnification shall survive such termination.
Disclaimer of Warranty. THE HLT APP IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. HLT DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE HLT APP. HLT MAKES NO WARRANTY OR REPRESENTATION THAT LICENSEE'S USE OF THE HLT APP WILL MEET LICENSEE'S REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liabilities.
IN NO EVENT SHALL HLT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR TORT DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGE RESULTING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF LICENSEE'S USE OR INABILITY TO USE THE HLT APP, REGARDLESS OF WHETHER ANY SUCH LOSS OR DAMAGE ARISES FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, AND EVEN IF HLT IS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR SUCH LOSS OR DAMAGE IS FORESEEABLE.
IN NO EVENT SHALL THE LIABILITY OF HLT FOR DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID BY LICENSEE FOR THE USE OF THE HLT APP GIVING RISE TO SUCH LIABILITY.
HLT shall under no circumstances be liable for any claim or demand by any third party based on or related to Licensee's use of the HLT App or errors or alleged errors in the HLT App, including, without limitation, heirs or dependents of the Licensee. Licensee will indemnify, defend, and hold HLT and its shareholders, employees, officers, directors, partners and agents (collectively, the "HLT Indemnified Parties") harmless from and against any and all claims, liability, losses, damages, costs and expenses (including attorney's fees) incurred by any HLT Indemnified Party as a result of, in connection with or arising from Licensee's use of the HLT App.
Export. The HLT App originated within the United States and may be subject to certain export restrictions. Licensee hereby agrees that it will not cause or knowingly allow the HLT App to be exported or re-exported, directly or indirectly, to any country, except in compliance with all applicable laws, including United States Export Administration Regulations.
Arbitration. Except for claims seeking injunctive relief or relating solely to a monetary obligation, any dispute arising out of this Agreement or the subject matter herein shall be submitted to binding arbitration by one (1) independent arbitrator pursuant to the Commercial Arbitration Rules (as supplemented by the Supplementary Procedures for International Commercial Arbitration if Licensee is not incorporated or otherwise organized within a United States jurisdiction) of the American Arbitration Association ("AAA"). The arbitrator shall be experienced in computer technology, the education industry and intellectual property law matters. The arbitration shall be conducted in the English language and held in the country of the United States and Iowa. This Agreement, any arbitration proceedings and any court-filed legal actions shall be governed by the laws of the United States and the State of Iowa, exclusive of the provisions governing conflict of laws, and without regard to the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto. Any court-filed legal action shall be held within the appropriate venue within the jurisdiction of the federal or state courts in the State of Iowa.
HLT reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on Licensee's use of the HLT App. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Licensee's continued use of the HLT App following will be deemed to constitute Licensee's acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
In the event that any of the terms of this Agreement is, becomes, or is declared to be invalid or void by any court or tribunal of competent jurisdiction, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
HLT's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
This Agreement shall be governed by and construed under and in accordance with the laws of Iowa, excluding its principles governing conflicts of law, and the courts within such jurisdiction shall be the only courts of competent jurisdiction.
Except as provided herein, no remedy in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referenced herein or otherwise available at law, in equity or otherwise.
Licensee agrees to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license rights granted herein, or the use of the HLT App.
There are no third party beneficiaries intended by this Agreement.
Licensee shall comply with all applicable laws governing the use of the HLT App.