ONLINE SOFTWARE END-USER LICENSE AGREEMENT
IMPORTANT! The Chinese instruction language software (the "Software") you seek to download from the Better Chinese website is licensed only on the condition that you agree to the terms and conditions set forth below. PLEASE READ THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY.
IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE CLICK ON THE BOX ON THIS PAGE LABELED "I ACCEPT," AT WHICH TIME THE SOFTWARE WILL BE DOWNLOADED TO YOUR COMPUTER.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE CLICK ON THE BOX ON THIS PAGE LABELED "I DO NOT ACCEPT," WHICH WILL RETURN YOU TO THE PREVIOUS WEB PAGE WITHOUT DOWNLOADING THE SOFTWARE.
The Software that you are about to access was developed by Better Chinese LLC, a California limited liability company, and its affiliated companies (collectively, the "Company") to help users teach and/or learn Mandarin Chinese. This End-User License Agreement (this "Agreement") sets forth the terms under which you, as an individual or entity authorized by Company (or, for entities, any employee you authorize to use the Software) ("you"), may use the Software. Access to and use of the Software is by permission of Company only, and only for applicants who accept this Agreement. Company may grant or withhold approval in its sole discretion.
Based on the foregoing and for other good and valuable consideration, you and Company agree as follows:
1. NATURE OF AGREEMENT. This Agreement is a legal contract made between you and Company. This Agreement contains the terms and conditions that you must comply with if you wish to access and use the Software.
2. LICENSE GRANT. Under this Agreement, Company grants to you a nonexclusive, non-assignable, non-sublicensable license, for your internal use only, for the term of this Agreement, to access and use the Software and any user's guides, specifications, and other related documentation available online (the "Documentation"), subject to the terms and conditions of this Agreement. The licenses granted in this Agreement are conditioned on payment in full for the Software in advance of your download or receipt of the Software.
3. OWNERSHIP OF SOFTWARE. Company retains all rights to the Software and the Documentation not specifically granted in this Agreement. Company owns the Software and the Documentation and all copyright and other intellectual property rights contained within them, and this Agreement does not transfer to you any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works to them, or the Documentation, or any copyrights, patent rights, or trademarks embodied or used in connection with them, except for the rights expressly granted in this Agreement. The Software and the Documentation are protected by
YOU MAY NOT USE, COPY, OR MODIFY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
4. RESTRICTIONS. To the maximum extent permitted by law, you shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Software access to any third party; (c) make any copy of or otherwise reproduce the Software (or any of the browser screens comprising the Software user interface) except for copies necessarily made by the personal computer and Internet browser that are running the Software; or (d) use the Software to provide service bureau or time-sharing services; or (e) disclose your User ID or Password to any third party to permit unauthorized use of the Software.
You agree to take all reasonable steps to safeguard your User ID and Password for the Software to ensure that no unauthorized person will have access to it, and that no persons authorized to have access will make any unauthorized use. You shall promptly report to Company any unauthorized use of the Software of which you become aware and shall take such further steps as may reasonably be requested by Company to prevent unauthorized use of the Software.
In addition, unless you are a school or educational institution that has purchased a commercial license, you are restricted from any commercial use of the Software. For clarification, the following types of “commercial use” of the Software are expressly prohibited unless you are a school or educational institution that has purchased a commercial license:
1. The use of the Software for private tutoring or training;
2. The use of the Software by a school, any educational institution, or after-school program; or
3. The use of the Software for providing language instruction, support, or training for a fee.
5. YOUR OBLIGATIONS. You shall be solely responsible for the following: (a) providing all hardware, software, and communications capabilities required for use of the Software, and are equipped with Internet access; and (b) providing and maintaining, at all times during the term of this Agreement, the Internet access necessary for your use of the Software.
6. TERM AND TERMINATION. The license granted in this Agreement is effective until terminated. The term of this Agreement and the license grant under it shall commence on the date you agree to this Agreement and download the Software. You may terminate the license and this Agreement at any time on 30 days' prior written notice to Company. This license also terminates automatically on your failure to comply with any of the other terms of this Agreement. On termination of this Agreement, you agree to promptly destroy all printed copies and delete all electronic copies of any documentation that you have downloaded, printed, or created relating to the Software, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on your computers. Notwithstanding termination, the provisions of Sections 3, 6, 7, 8, 9, and 10 of this Agreement shall survive and continue to apply.
7. CONFIDENTIALITY. You agree that you shall not disclose to any third party the Software or any portion of it, any technical, product, or business information, or any information that Company identifies as confidential (collectively, "Confidential Information") related to the Software without the prior written consent of Company. You shall maintain the confidentiality of all Confidential Information and shall not use it for any purpose other than the performance of this Agreement.
Notwithstanding the foregoing, Confidential Information does not include information that you can demonstrate was (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by you; (b) in your possession before disclosure by Company; or (c) disclosed to you by a third party not in violation of any obligations of confidentiality to Company or to any third party.
8. LIMITATION OF LIABILITY. You are not entitled to receive damages from Company for any cause relating to this Agreement, to your use of the Software, to any services provided by Company under this Agreement, or to any services provided by any third party in connection with your use of the Software. In addition, in no event shall you be entitled to obtain any injunctive relief or enjoin, restrain, or otherwise interfere with Company or with the distribution, operation, development, or performance of the Software or any related products.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE COMPANY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF FIFTEEN U.S. DOLLARS ($15) UNLESS CAUSED BY COMPANY’S WILLFUL MISCONDUCT.
9. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR THE COURSE OF DEALING BETWEEN THE PARTIES. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, COMPANY DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE SOFTWARE AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS THE SOFTWARE.
10. GOVERNING LAW; VENUE. This Agreement shall be governed by and be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. Any proceeding to enforce or interpret its terms will be commenced in San Mateo County, California.
11. DISPUTE RESOLUTION; ARBITRATION. You and Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Software (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
12. FORCE MAJEURE. If the performance of Company under this Agreement is prevented, hindered, or otherwise made impractical because of flood, strike, war, acts of government, or any other casualty or cause beyond the control of Company, then Company shall be excused from its performance to the extent and as long as it is prevented, hindered, or delayed by any of these events.
13. SEVERABILITY. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then to the maximum extent permitted by law, the invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement.
14. NO ASSIGNMENT. You may not assign this Agreement or any of the rights granted by Company under it, in whole or in part, without the prior written consent of Company, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
16. ACKNOWLEDGMENT AND EXCLUSIVITY. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND COMPANY, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND COMPANY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT BY A WRITING SIGNED BY THE PARTIES.