ToolBook Software License Agreement

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license agreement

The following is the text of the ToolBook License Agreement that must be agreed to during the installation process of ToolBook.




SUMTOTAL SYSTEMS, INC.

TOOLBOOK SOFTWARE LICENSE AGREEMENT


THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU AND SUMTOTAL SYSTEMS, INC. (“SUMTOTAL”, “WE” OR “US”) WHICH GOVERNS YOUR USE OF THIS SOFTWARE. SUMTOTAL SYSTEMS IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY ON THE CONDITION THAT YOU AGREE TO ALL OF THE TERMS OF THIS AGREEMENT. CAREFULLY READ THIS AGREEMENT BEFORE INSTALLING OR USING THE SOFTWARE. IF YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, PLEASE CLICK THE “I AGREE” BUTTON. BY INSTALLING OR USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE FOLLOWING TERMS AND CONDITIONS, PLEASE CLICK THE "I DO NOT AGREE" BUTTON AND PROMPTLY RETURN THE SOFTWARE.


LICENSE. Subject to the terms and conditions of this agreement, under this license you may install and use this ToolBook software program from SumTotal (“Software”) up to two computers per named user at any one time. You may also make a single copy of the Software for archival purposes, or copy the Software to a single hard disk provided you retain the original for archival purposes and provided that copyright and other restricted rights notices are also reproduced. The Software is “in use” when it is loaded into RAM, or installed on a hard disk or other storage device (other than a network file server).


You may only use the Software as described in the previous paragraph for the period of time you ordered from SumTotal (“Term”). If you acquired the Software for trial use, the Term shall be 21 days (“Trial Term”). If you acquired the Software on a subscription basis, the Term shall be one year. If you acquired the Software on a perpetual basis, the Term shall be perpetual. The applicable Term shall begin on the date SumTotal first delivers, whether by physical shipment or by electronic download, the Software to the initial licensee hereunder. Upon conclusion of the applicable Term, your right to use the Software shall cease, and you shall discontinue all use of the Software and uninstall the Software, unless you purchase additional Term(s) to continue your use of the Software as described herein.


If you purchased a ToolBook for Teaching Edition license, this license may be used only by teachers or students of an accredited academic institution’s campuses. Such teachers or students may only use this Software in connection with academic work with enrolled students at the accredited academic institution. If you are not a teacher or student of an accredited academic institution designated campus, or if you wish to use the Software other than in connection with academic work for enrolled students at such accredited academic institution, then you must obtain a standard commercial license agreement for the Software.


If you acquired the Software for trial use, you may use the Software during the Trial Term for one user for evaluation purposes only, and you may not use the Software for any production or commercial purposes.


RESTRICTIONS. You may not (i) install the Software on a network file server unless you have a serialized Additional User Software License Agreement for each user accessing the Software through the network; (ii) copy the written materials accompanying the Software; (iii) use, copy, modify, translate, merge or create derivative works of the Software except as provided in this agreement; (iv) disable or circumvent any licensing control feature in the Software; (v) reverse-engineer, disassemble, or decompile the Software or otherwise attempt to determine its underlying source code, underlying ideas, underlying user interface techniques or algorithms, or permit any such actions except and to the extent expressly permitted by local copyright law, the application of which cannot be excluded by contract; (vi) distribute, lend, sublicense (except to the extent specifically permitted herein), rent or lease all or any portion of the Software, but you may transfer the Software and manuals to a single recipient for the remainder of the applicable Term provided you deactivate your license with SumTotal, you retain no copies, the transfer includes all updates and prior versions of the Software licensed to you, the recipient agrees to the terms of this agreement, and the recipient uses your same activation code to install and activate the Software for the remainder of the applicable Term; or (vii) use the Software or any of the Software components to develop or enhance any product that competes with the Software


COPYRIGHT. The Software, the Training Services (defined below) and all documentation and training materials we provide are owned by SumTotal or its suppliers and are protected by United States copyright and trade secret laws and international treaty provisions. You must treat the Software like any other copyrighted material. Any rights not expressly granted to you hereunder are reserved to SumTotal.


REDISTRIBUTION FOR NATIVE TOOLBOOK APPLICATIONS. The Software includes one or more of the following classifications of Redistributable Files, as defined in the ToolBook Knowledge Base article P3028. Except to the extent provided below in this section and subject to any additional restrictions for particular Redistributable Files as described in ToolBook Knowledge Base article P3028, this license gives you (but not licensees of your Application) a limited right to copy and distribute Runtime Files on condition that:


 (i) you copy or distribute the Additional Runtime Files only in conjunction with, linked to, and as a part of your applications created with the Software or operating in a SumTotal ToolBook environment (“Application”); you may distribute the ToolBook Runtime Files separately from your Application;

 (ii) you do not remove any copyright notices from the Redistributable Files;

 (iii) if you distribute your Application outside your organization, you do so only pursuant to a license agreement between you and the users of your Application that prohibits any use prohibited by this license (including subsequent redistribution of Redistributable Files by such licensees of your Application), and that contains provisions that disclaim your liability for consequential and incidental damages and that provides that such provisions expressly inure to the benefit of your suppliers;

 (iv) you indemnify and hold harmless SumTotal and its suppliers from and against any damages or liabilities, including attorneys' or other legal fees, that arise or result from claims or lawsuits regarding the use or distribution outside your organization of your Application;

 (v) if you distribute your Application outside your organization, you include SumTotal’s restricted government rights notices prominently on your Application and license agreement; AND

 (vi) you comply fully with the terms and conditions of this license and all applicable laws and regulations.


Unless you receive the prior written permission of SumTotal, this license does not permit you to create or distribute Sim AutoBuilder Recorder or the Publish to ToolBook add-on, to create any DHTML application with this Software, or to create any Native Application with this software that (a) can be used to create new applications designed to operate in a SumTotal ToolBook environment, or (b) can be used to create a DHTML application, or (c) provides the ability to create scripts or to copy predefined scripts to new objects, or (d) provides the ability to define or redefine hyperlinks.


You may contact SumTotal to request permission to create and distribute such an Application.


TRAINING SERVICES.


 (a) Any training service project we undertake shall be described in statements of work (each a “Statement of Work”) setting forth the agreed upon training to be provided (“Training Services”), pricing and payment terms. Both parties shall execute each Statement of Work and each is incorporated herein by this reference. The terms of a Statement of Work will control over any conflicting terms in this Agreement.


 (b) We will provide the Training Services according to the applicable Statement of Work. You acknowledge that your cooperation is essential to the timely performance of our Training Services. You will, to the extent required in connection with the performance of our services: (i) provide us with any necessary access to your personnel, facilities or data; (ii) cause the appropriate personnel to cooperate with us as required for us to provide the Training Services, including responding promptly to questions or issues, and (iii) make any payments when due. Your delay or failure to do so shall excuse any resulting failure by us to meet any training schedules set forth in the Statements of Work. If you fail to do any of the foregoing, both parties will cooperate in good faith to develop a revised written training schedule and written Statement of Work or change order signed by both parties with new pricing.


 (c) If our personnel, agents or representatives are required to travel to a location other than one of our facilities, you will pay or reimburse us upon invoice for all reasonable travel expenses including airfare, ground transportation, lodging and meals for personnel required to travel. We will adhere to our corporate travel policies and provide a copy, unless other agreements are made prior to undertaking a project. Training Services to be provided on-site at your facilities will be scheduled in advance by agreement of each party. We will use reasonable efforts to accommodate any requested change in the scheduled dates for Training Services, subject to the availability of appropriate personnel. You will also reimburse us upon invoice for our out-of-pocket expenses in connection with the performance of Training Services as set forth in the applicable Statement of Work. At your request, we will provide receipts or other reasonably satisfactory evidence of such expenses.


 (d) You may request changes to the scope of Training Services set forth in an applicable Statement of Work by providing us with such request in writing at least 10 days prior to the date such Training Services are to begin. We will use commercially reasonable efforts to accommodate requested scope changes, subject to this Section. Any scope changes shall be subject to mutual agreement and shall be set forth in a new Statement of Work or a written change order setting forth the changes to the Training Services and any modifications to the training dates, payment terms and agreed pricing.


 (e) Unless set forth elsewhere in this Agreement, all payments are due on net 30-day terms from invoice date. Payment terms in this Agreement are subject to credit approval in our reasonable discretion and may be changed based on your financial position or payment history. You agree to pay a finance charge of 1.5% per month on all past due amounts. All prices and payments in this Agreement are exclusive of all taxes, and you agree to pay all national, state and local sales, use, value-added and other taxes, customs duties and similar tariffs and fees based on services provided hereunder, other than taxes imposed on our net income.


 (f) Unless otherwise stated in the Statement of Work, you will pay us at the then-current hourly rate for our employee or subcontractor who is performing the Training Services. Rates are subject to change. We will invoice you monthly at the end of each month at the billing rates set forth in the Statements of Work for work performed on each Statement of Work during the previous month. Invoices will include a summary of all time expended for each personnel classification providing Training Services during the month.


LIMITED WARRANTY. Provided that you have paid license fees for your use of the Software, SumTotal warrants that, for 90 days after date of the initial delivery of the Software to you, the disks or CD-ROM (if the Software was delivered on tangible media) will be free from defects in materials and workmanship. Your exclusive remedy for breach of warranty is to return the complete product, with proof of purchase, to SumTotal (if purchased direct) or to your reseller and it will be replaced for free. You are responsible for the selection and use of the Software, and, unless you have separately purchased installation support from SumTotal, for the installation and configuration of the Software.


DISCLAIMER. IF YOU ACQUIRED THE SOFTWARE FOR TRIAL USE, THE SOFTWARE IS PROVIDED FREE OF CHARGE FOR EVALUATION PURPOSES ONLY AND IS PROVIDED "AS-IS." THE TRAINING SERVICES AND ALL DOCUMENTATION AND TRAINING MATERIALS ARE PROVIDED “AS IS.” EXCEPT FOR THE LIMITED WARRANTY DESCRIBED IN THE PREVIOUS PARAGRAPH, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUMTOTAL AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE OPERATION OF THE PRODUCTS WILL BE INTERRUPTION OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE IS PROVIDED “AS-IS.” ALL WARRANTIES AND CONDITIONS SHALL TERMINATE 90 DAYS FROM DATE OF DELIVERY, WHETHER BY PHYSICAL SHIPMENT OR BY ELECTRONIC DOWNLOAD, OF THE SOFTWARE TO THE ORIGINAL LICENSEE. Some jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. IMPORTANT NOTE: Nothing in this agreement is intended or shall be construed as excluding or modifying any statutory rights, warranties or conditions which are applicable to this agreement or the Software, and which by virtue of any national or state Fair Trading, Trade Practices or other consumer legislation may not be modified or excluded. If permitted by such legislation, however, SumTotal’s liability for any breach of any such warranty or condition shall be and is hereby limited to either: (i) the supply of such Software again or; (ii) the correction of any defect in such Software as SumTotal at its sole discretion may determine to be necessary to correct the defect.


EXCLUSIVE REMEDY. EXCEPT AS OTHERWISE PROVIDED HEREIN, YOUR EXCLUSIVE REMEDY AND SUMTOTAL’S AND ITS SUPPLIERS' ENTIRE LIABILITY ARISING FROM OR IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION AND/OR THIS AGREEMENT SHALL BE THE REPLACEMENT OF THE SOFTWARE.


LIMITATIONS OF LIABILITY. IN NO EVENT WILL SUMTOTAL OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, OR OTHERWISE IN CONNECTION WITH THE SOFTWARE, THE DOCUMENTATION, THE TRAINING SERVICES AND/OR THIS AGREEMENT EVEN IF SUMTOTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow limitation or exclusion of incidental or consequential damages, so the above limitation or exclusion may not apply to you to the extent that liability is by law incapable of exclusion or restriction. IN NO EVENT SHALL SUMTOTAL’S OR ITS SUPPLIERS' TOTAL AGGREGATE CUMULATIVE LIABILITY FOR ANY DAMAGES, DIRECT OR INDIRECT, IN CONNECTION WITH THE SOFTWARE, THE DOCUMENTATION, AND/OR THIS LICENSE EXCEED THE LICENSE FEES PAID FOR YOUR RIGHT TO USE THIS COPY OF THE SOFTWARE WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. Provisions of this agreement such as the warranty limitations, exclusive remedies and limitations of liability are unrelated, independent allocations of risks between you and SumTotal. Unenforceability of any such allocations shall not affect the enforceability of other such allocations. If any part of this agreement is held to be unenforceable, it shall not affect any other part. If any part of this agreement is held to be unenforceable as written, it shall be enforced to the maximum extent allowed by applicable law. SumTotal’s pricing reflects the allocations of risk contained in this agreement.


Termination. This agreement and your right to use the Software terminate automatically if you violate any part of this agreement. If you acquired the Software for trial use, SumTotal may terminate this agreement immediately at any time. Upon any termination or expiration of this agreement or the applicable Term, you will either (i) purchase an appropriate license to the Software or (ii) discontinue all use of the Software, return all media to us, and provide us with a certification signed by a corporate officer that all copies of the Software, including backup copies, whether partial or complete, have been returned to us and/or deleted from the storage media. You may terminate any Statement of Work for any reason upon 30 days prior written notice to us. The following Sections shall survive the termination or expiration of this agreement: Copyright, Disclaimer, Exclusive Remedy, Limitations of Liability, Termination, and General.


U.S. GOVERNMENT RESTRICTED RIGHTS. If you are an agency of the United States Government, the following clause applies to this license. The Software is commercial computer software developed at private expense. The Software is provided to the United States Government with the commercial license rights and restrictions described elsewhere herein. This license incorporates by reference the following clauses: 41 CFR §60-1.4(a); 41 CFR §60-250.5(a); and 41 CFR §60-741.5(a). SumTotal shall abide by non-segregation regulations at 41 CFR §60-1.8 and any applicable affirmative action obligations as required by 41 CFR §60-1.40(a)(2).


CONFIDENTIALITY. SumTotal’s Confidential Information shall include (i) any materials or information labeled or identified by SumTotal as “confidential”, and (ii) all Training Services, training materials and documentation provide by SumTotal. You shall (x) not disclose SumTotal’s Confidential Information to any third party at any time; (y) limit disclosure of SumTotal’s Confidential Information within your own organization to your employees or your legal, financial and accounting advisors having a need to know and who have agreed to be bound by terms at least as protective of SumTotal’s Confidential Information as this Agreement; and (z) protect the confidentiality of SumTotal’s Confidential Information with at least the same degree of care as you use to protect your own confidential information of a like nature, but no less than a reasonable degree of care.


GENERAL. You agree not to directly or indirectly export or re-export the Software or the direct product thereof except as authorized by the laws and regulations of the United States and any other applicable jurisdiction. This license and your right to use the Software terminate automatically if you violate any part of this agreement. In the event of termination, you must immediately destroy all copies of the Software or return them to SumTotal. This agreement constitutes the entire agreement between you and SumTotal and supersedes any prior agreement concerning the contents of this package. It shall not be modified except by written agreement dated subsequent to the date of this agreement signed by an authorized SumTotal representative. SumTotal is not bound by any provision of any purchase order, confirmation, correspondence or otherwise, unless SumTotal specifically agrees to the provision in writing. You shall not assign your interest in the Agreement without our prior written consent, which consent shall not be unreasonably withheld. We may transfer and/or assign some or all of this Agreement without prior written notice to you or your consent. This Agreement will inure to the benefit of and be binding upon the party’s successors and permitted assigns. This agreement is governed by the internal laws of the State of California, U.S.A., excluding its conflict of law rules, and specifically excludes the United Nations Convention on Contracts.



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