TERMS OF SERVICE
|NwETA: ||Northwest Education Training & Assessment, LLC|
17300 Grand View Court
Lake Oswego, OR 97034
|NwETA Products:||cTRAIN 2.1 or later versions.|
1LICENSE. Subject to the limitations set forth herein, NwETA hereby grants Licensee a limited non-exclusive, non-transferable license to possess and use the NwETA Products.
2NO OTHER RIGHTS GRANTED. Nothing in this Agreement shall be interpreted or construed as granting Licensee any right to use the NwETA Products (or any part thereof) or any other Confidential Information in any manner other than as expressly permitted herein or to limit any rights or remedies NwETA may have under copyright, patent, trademark, trade secret or other applicable laws. All rights not expressly granted to Licensee are reserved to NwETA.
3OWNERSHIP. Licensee acknowledges and agrees that the NwETA Products, Confidential Information and all related materials are the sole and exclusive property of NwETA and protected by patent, copyright, trademark, trade secret and other applicable laws. Licensee agrees not to assert any ownership interest in or any other rights inconsistent with NwETA’s sole and exclusive ownership of the NwETA Products and Confidential Information.
4CONFIDENTIALITY. All information disclosed by NwETA or learned or discovered by Licensee in the course of evaluating the NwETA Products is the confidential, trade secret, proprietary property of NwETA (“Confidential Information”). Licensee agrees that it will maintain all Confidential Information received in the strictest confidence under access and use restrictions sufficient to prevent copying, use, or disclosure except as otherwise expressly permitted under this Agreement and (b) shall not disclose or transfer any Confidential Information to any third party or use the Confidential Information for any purpose other than for the Purpose.
5TERMINATION. This Agreement will be terminated as described below unless terminated earlier by written notice from NwETA. For time-based licenses, this Agreement will terminate immediately, without notice on the date that is the number of days in the “License Period” after the “Effective Date”. For use-based licenses, this Agreement will terminate immediately, without notice when the number of “Licensed Uses” of the NwETA Products has been completed. Upon termination, Licensee shall stop using it and the program will become unusable unless an extension is requested and granted by NwETA.
6RESTRICTED RIGHTS. If Licensee is a United States government or quasi-government entity, Licensee acknowledges that the NwETA Products are a “commercial item”, as defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.1212 (Sept. 1995). Consistent with 48 C.F.R. 12.1212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) all such Licensees acquire the NwETA Products with only those rights specifically set forth in this Agreement. Use, duplication or disclosure of the NwETA Products by the United States government is subject to restrictions as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct. 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
7DISCLAIMER OF WARRANTY. NwETA MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO NW PRODUCTS OR CONFIDENTIAL INFORMATION. THE NwETA PRODUCTS AND CONFIDENTIAL INFORMATION ARE PROVIDED TO LICENSE “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED AND LICENSEE ASSUMES ALL RISK ARISING FROM DOWNLOADING, COMPILING, TESTING AND USE OF THEREOF. NwETA AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND INFRINGEMENT OF THIRD PARTY RIGHTS, COMPATIBILITY OR ACCURACY.
8LIMITATIONS OF LIABILITY. NwETA AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF NwETA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NwETA’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100.00). THE WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NwETA AND LICENSEE; NwETA WOULD NOT PROVIDE THE NwETA PRODUCT CODE WITHOUT SUCH LIMITATIONS.
9INJUNCTIVE RELIEF AND ATTORNEYS FEES. Breach of the confidentiality obligations or other restrictions of this Agreement will cause NwETA irreparable harm for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, NwETA shall be entitled to equitable relief, including injunction, in the event of such breach. In the event it becomes necessary for NwETA to take or threaten to take legal action to enforce the terms of this Agreement, Licensee agrees that NwETA shall be entitled to recover from Licensee all attorneys’ fees, costs and expenses incurred by NwETA in connection with such activities.
10GENERAL. This Agreement shall be interpreted, construed and enforced pursuant to the laws of the State of Oregon, USA, without giving effect to its choice of law rules. The state and federal courts located in Multnomah County, Oregon shall have exclusive jurisdiction over this Agreement. The Parties hereto hereby grant sole and exclusive jurisdiction to such court(s) and to any appellate courts having jurisdiction over appeals from such court(s) and waive any and all objections to venue in those courts. This Agreement constitutes the entire agreement between the parties with respect to the use of the NwETA Products and other Confidential Information, and supersedes all prior understandings or agreements, whether written or oral, regarding such subject matter.
IN WITNESS WHEREOF, the authorized representatives of NwETA have executed this Agreement as of the date the license key was transmitted to the licensee. The licensee will execute this agreement by clicking “Agree” in the License Agreement page of the NwETA Product.