This Terms of Service and Product License Terms (the “Agreement”) is a legal agreement between you, and Cranium Cafe. In this Agreement, the term “Product” or “Product” means the Cranium Cafe platform, including computer software and associated online or electronic documentation. The term “you” means you the user, the company, institution, entity and/or individual who acquired the license to use the Product under this Agreement. The term “we” or “us” means Cranium Cafe, except that terms such as “both of us” means both you and us. The term “use” means storing, loading, installing, executing or displaying the Product. “Computer” means a single computer which is not a server.
License Grant. Except as otherwise specifically set forth below, upon payment of the applicable license fee we grant you and you accept the non-exclusive, non-transferable right to use the Product in object code form only, on a single Computer. You may make copies of the Product solely for backup or archival purposes or when copying is an essential step in the authorized use of the Product. You must reproduce all copyright and other proprietary or restricted rights notices in the original Product on all authorized copies. You may not: permit other individuals to use the Product; permit concurrent use of the Product; modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Product; copy (including copying onto a bulletin board or similar system) the Product other than as specified above; rent, lease, grant a security interest in, or otherwise transfer rights to the Product. If you are using the Product in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Product does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. Content. To the extent that the Product enables you to access (on-line or otherwise) materials not supplied by us (“Content”), you should be aware that such Content is the property of the applicable Content owner and may be protected by applicable copyright law. This Agreement grants you no rights to Content. Copies and Upgrades. You may receive the Product or upgrades in more than one medium or more than one copy, for example on a physical disk or by download single or multiple times. Your usage rights are limited as above, and your possession of multiple copies of medium (or multiple downloads) does not increase your usage rights. If the Product is an upgrade of one of our Products, you now may use that upgraded Product only in accordance with this Agreement. You may not loan, rent, lease, or otherwise transfer the original non-upgraded Product to another user.Agreement to Install Updates. The Product may cause your computer system or other device to download and install updates from time to time. These updates are designed to improve, enhance and further develop the Product and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You consent and agree to receive and permit the installation of such updates (and to permit us to deliver these to you) as part of your use of the Product. These Terms shall apply to any such updated Product. Ownership. You acknowledge and agree that the Product is owned and copyrighted by us or our third party suppliers. Your license confers no title or ownership in the Product and is not a sale of any rights in the Product. All ownership rights remain in us or our third party suppliers, as the case may be. Provision of Registration Information. In order to access the Product, you may be required to provide information about yourself (such as identification or contact details) from time to time, including, but not limited to, as part of the registration process for the Product, or as part of your continued use of the Product. You agree that any registration information you give to us will always be accurate, correct and up to date. We agree to take commercially reasonable steps to preserve the confidentiality of such information. WARRANTY AND LIMITATIONS ON LIABILITY.
Limited Warranty. We warrant that the Product will function substantially in accordance with its documentation. As your exclusive remedy for breach of this warranty, we will, at our option, either replace or repair the defective Product, provided that you legally obtained the product; and you destroy all copies of the Product and provide the dealer from whom it was acquired (or us, if acquired directly) with certification of such destruction and proof of purchase. Warranty Exclusions. This warranty does not cover damage due to external causes, including accident, abuse, misuse, modifications not authorized by us, usage not in accordance with product instructions, failure to perform required preventive maintenance, and problems caused by use of materials not supplied by us. Because the Product is inherently complex and may not be completely free of errors, you are advised to verify and back up your work. Additionally, we do not guarantee compatibility between the Product and any future versions of the Product. THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY US. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. OUR RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN PRODUCTS IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION. Limitations On Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF WE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, WE ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), OUR LIABILITY TO YOU WILL BE LIMITED TO THE GREATER OF $1,000 OR THE AMOUNT PAID FOR THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. GENERAL.
Export Controls. None of the Product or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using the Product, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any country to which such export is so prohibited or on any such list. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Product, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable. U.S. Government End Users. The Product is a “commercial item,” as that term is defined in 48 C.F.R. 12.101 (Oct. 1995), consisting of “commercial computer Product” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Product with only those rights set forth herein: Term. Your license under this Agreement is effective until terminated. You may terminate this license at any time. We may terminate this Agreement immediately if you breach any of the provisions of this Agreement. Upon any such termination or expiration, you must discontinue all use of the Product, and immediately destroy the Product together with all copies. The provisions of this Agreement (other than your license to use the Product) shall survive the termination of the license, or the termination or expiration of this Agreement. Controlling Law and Severability. This Agreement constitutes the entire agreement between both of us with reference to this transaction. This Agreement will be governed by the laws of the State of Utah, USA, except for that body dealing with conflicts of law. The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. In the event of any dispute involving this Agreement, both of us consent to exclusive jurisdiction and venue in either the state or federal courts in the State of Utah and agrees that the prevailing party shall be entitled to its reasonable attorney fees and costs. In the event any provision of this Agreement shall be deemed unenforceable, void or invalid, such provision shall be modified so as to make it valid and enforceable, and as so modified the entire Agreement shall remain in full force and effect. No decision, action or inaction by us shall be construed to be a waiver of any rights or remedies available to us. Compliance With Standards of Conduct. You agree not to use the Product in violation of our standards of conduct posted at blog.conexed.com/conduct as amended from time to time, in particular you may not: use the Product in a manner that would cause you or us to violate any applicable local, state, national or international law, including any rules and regulations of any securities exchange, any rules, regulations, requirements, procedures or policies in force from time to time relating to the Product, and any export or re-export laws, rules and regulations; interfere with or disrupt the Product or take any steps to interfere with or in any manner compromise any security measures with respect to the Product or any data or file transmitted, processed or stored on or through the Product. Responsibility to Maintain Confidentiality. You are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Product. Accordingly, you will be solely responsible to us for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify us immediately. External Resources. The Product (and any advertising on the Product, if applicable) may include links to third-party content or resources (“External Resources”) including, without limitation, web pages. We may have no control over such External Resources. We expressly disclaim any responsibility for any inaccuracy in any information or other materials contained in any External Resources and any defective products or services provided by, or advertised on, any External Resources. We do not endorse, nor does the display or posting of any link on any part of the Product imply that we endorse, any External Resource or any products or services described therein. We expressly disclaim any responsibility for the availability of any External Resources. You acknowledge and agree that we are not liable for any loss or damage which may be incurred by you as a result of the availability (or lack of availability) of those External Resources, or as a result of your reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available from or through any External Resource. Notices. You agree that we may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Product. Waiver. You agree that if we do not exercise or enforce any legal right or remedy which is contained in these Terms (or which we have the benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us. Third Party Beneficiaries. You acknowledge and agree that each member of the group of companies of which we are the parent shall be third party beneficiaries to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or rights in favor of) them. Other than this, and except as expressly provided otherwise in these Terms, no other person or company shall be third party beneficiaries to these Terms. Amendment. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.