End User License Agreement

LICENSE AGREEMENT

THIS LICENSE AGREEMENT (AGREEMENT) IS A LEGAL AGREEMENT BETWEEN YOU (CUSTOMER) AND JUMP MATH (JUMP) HAVING ITS PRINCIPAL OFFICES AT 1006-1 YONGE STREET, TORONTO, ONTARIO AND IS EFFECTIVE UPON CUSTOMER’S ACCEPTANCE (EFFECTIVE DATE). BY INDICATING ACCEPTANCE IN THE MANNER SPECIFIED BELOW, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH SHALL GOVERN CUSTOMER’S ACCESS AND USE OF THE CONTENT (AS DEFINED BELOW).

IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE CONTENT WILL NOT BE PERMITTED.

CUSTOMER UNDERSTANDS THAT THIS AGREEMENT ONLY PERMITS CUSTOMER TO USE THE CONTENT FOR HIS OR HER OWN TEACHING PURPOSES AND ALLOWS CUSTOMER TO MAKE EDITS TO THE CONTENT FOR HIS OR HER OWN TEACHING USE AND NOT FOR DISTRIBUTION TO ANY OTHER PERSON.

RECITALS:

  1. JUMP is the developer and owner of educational electronic interactive-whiteboard-ready lesson content (the Content) for one particular grade designed for use by teachers, tutors and educators.
  2. Customer wishes to license the Content from JUMP.
  3. This Agreement sets out the terms and conditions on which Customer has agreed to license the Content from JUMP.

THEREFORE, in consideration of the mutual promises, covenants, and conditions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, JUMP and Customer agree as follows:

1.0          LICENSE GRANT AND RESTRICTIONS

1.1          License. JUMP hereby grants to Customer, subject to the terms and conditions of this Agreement, a perpetual, limited, royalty-free, non-exclusive, personal, revocable, non-transferable and non-assignable license to use the Content for the Permitted Purpose (the Licence). Permitted Purpose means to access and use the Content on Customer’s computer systems solely for Customer’s own teaching purposes in connection with the teaching of mathematics on his or her own behalf and subject to any limitations, restrictions or requirements specified herein. The Permitted Purpose includes Customer’s right to edit the Content (the Modified Lesson Content) for Customer’s own teaching purposes. The foregoing license shall include the right of Customer to use for his or her own teaching purposes in connection with his or her use of the Content, any related and available documentation and user manuals (the Documentation) provided by JUMP to Customer (in any form). For certainty, the foregoing does not oblige JUMP to provide any Documentation to Customer.

1.2          Restrictions on Use.  Except as otherwise permitted by this Agreement, Customer’s access and use of the Content is subject to the following restrictions and limitations: (i) Customer may only copy the Content to the extent required for the Permitted Purpose and for purposes of back-up; (ii) Customer shall limit use of the Content to the students of Customer in order to permit Customer to use and access the Content and related materials as expressly permitted pursuant to this Agreement; (iii) Customer shall: (A) not provide, reproduce, sublicense or otherwise permit any person, including any colleague, employer, or parent to use, disseminate, transmit, “download” or reproduce the Content, the Modified Lesson Content or the Documentation; and (B) not adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Content except as expressly permitted pursuant to this Agreement, in any manner or to any extent whatsoever, whether in whole or in part; and (v) not alter any proprietary notices appearing in the Content or the Documentation.

1.3          No Support.  At its sole discretion, JUMP may elect to provide technical support for the Content to Customer. Any such technical support shall be only available during JUMP’s regular business hours and will (unless JUMP otherwise agrees) be limited to answering questions concerning the Content. The parties confirm that JUMP is not obligated hereunder to provide any support or maintenance (including no obligation to correct any errors or defects) or to provide any updates to or in respect of any Required Third Party Products (as defined herein) or the Content.

1.4         Costs & Expenses.  All costs and expenses incurred by Customer in his or her use of the Content shall be borne solely by Customer. In the event that Customer requests that JUMP provide Customer with any assistance or services or training in connection with Customer’s use or the Content any such assistance or services or training will be provided in JUMP’s sole discretion and to the extent that JUMP is unwilling to provide such assistance or services or training free of charge, will be provided at extra charge to, and paid for by, Customer, provided that JUMP shall obtain the written approval of Customer prior to incurring any additional costs or expenses for which it seeks reimbursement. Any amounts that may be due and payable by Customer hereunder are exclusive of all taxes imposed by applicable law shall be invoiced in advanced and due immediately upon receipt of JUMP’s invoice unless the parties otherwise agree in writing.

1.5          Third Party Products.  Customer acknowledges that the use of the Content requires the use of certain third party products, such as hardware provided by SMART Technologies Inc. (SMART), hardware provided by Promethean Ltd. (Promethean), SMART’s “SMART Notebook collaborative learning software”, or Promethean’s “ActiveInspire” software (the Required Third Party Products). Customer agrees that JUMP has no responsibility or obligation under this Agreement to supply, or any liability whatsoever concerning, the Required Third Party Products and that Customer shall be solely responsible for sourcing, acquiring and licensing such Required Third Party Products directly.

2.0          CONFIDENTIALITY AND PROPRIETARY RIGHTS

2.1          Proprietary Information and Ownership Content.  Customer acknowledges that the Content and the Documentation and all related product information (inclusive of all trade secrets, ideas, concepts, processes, procedures, copyrights and know-how contained therein) disclosed in connection with this Agreement, in any form, is the proprietary information of JUMP (Proprietary Information). Except as and to the extent expressly authorized hereunder, Customer may use the Proprietary Information only to the extent required in the exercise of his or her rights hereunder. Customer acknowledges and agrees that all right, title and interest in and to the Proprietary Information (including all intellectual property rights therein, including all copyright) is, and shall be, owned solely and exclusively by JUMP. Nothing in this Agreement shall, or shall be deemed or construed to, assign, transfer or convey to Customer any title, rights or interest in any intellectual property, including copyrights, methodologies, ideas and concepts, in or to the Proprietary Information other than the Licence or other rights specifically and expressly granted herein.  Except as otherwise provided for in this Agreement, JUMP shall not be under any obligation to make any particular Proprietary Information available to Customer or to supplement or update any Proprietary Information previously furnished.

2.2          Relief.  Customer acknowledges and agrees that damages may be an inadequate remedy for a breach of Article 2.0 or the provisions of this Agreement relating to Customer’s access to and use of the  Content and the Proprietary Information and agrees that such breach shall constitute irreparable harm to JUMP. Customer agrees not to contest or object to an application for equitable relief by JUMP in such circumstances and waives any and all immunities from injunctive relief to which it may be entitled.  Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. Customer agrees that the provisions of this section are fair and reasonable in the circumstances of this Agreement.

3.0          RISK MANAGEMENT

3.1          No Warranties.  CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE CONTENT, THE DOCUMENTATION AND ALL RELATED INFORMATION, DATA, PRODUCTS AND/OR SERVICES OR ASSISTANCE PROVIDED BY JUMP TO CUSTOMER, IS PROVIDED ON AN “AS AVAILABLE” AND “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND OR NATURE WHATSOEVER INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR THAT THE CONTENT WILL BE ERROR FREE, OR CONCERNING THE CONTENT’S FUNCTIONALITY, PERFORMANCE OR USE BY CUSTOMER AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  CUSTOMER CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY JUMP WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT.  CUSTOMER ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF THE INSTALLATION, ACCESS OR USE OF THE CONTENT, AND ANY SERVICES OR ASSISTANCE PROVIDED BY JUMP IN ANY CONNECTION THEREWITH, REMAINS WITH CUSTOMER.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONTENT IS ONLY A TOOL AND THAT JUMP PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE RESULTS TO BE ATTAINED BY CUSTOMER OR ANYONE ELSE FROM THE USE OF THE CONTENT OR THE THIRD PARTY PRODUCTS. CUSTOMER IS SOLELY LIABLE FOR THE RESULTS OBTAINED THROUGH HIS OR HER USE OF THE CONTENT.

3.2          Limitation.  CUSTOMER AGREES THAT JUMP (OR ITS LICENSORS) SHALL NOT BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR ANY DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR ANY THIRD PARTY HOWSOEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR BASIS OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE), EVEN IF SUCH DAMAGES ARE FORESEEABLE OR JUMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CUSTOMER HEREBY ASSUMES ALL RISKS AND LIABILITIES IN CONNECTION WITH HIS OR HER USE OF THE CONTENT.  THIS SECTION SHALL SURVIVE ANY BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY REMEDY CONTAINED HEREIN. IF YOU ARE DISSATISFIED WITH THE CONTENT OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE CONTENT. IF THE FOREGOING LIMITATION IS NOT UPHELD, JUMP’S MAXIMUM LIABILITY TO CUSTOMER ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, OR INJURY, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO JUMP FOR THE CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.

3.3          Acknowledgement.  CUSTOMER EXPRESSLY ACKNOWLEDGES AND CONFIRMS THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS AGREEMENT ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES AND THAT JUMP WOULD NOT HAVE ENTERED INTO THIS AGREEMENT AND LICENSED THE CONTENT BUT FOR CUSTOMER’S AGREEMENT TO SUCH LIMITATIONS AND EXCLUSIONS.

3.4          Indemnification.  Customer hereby agrees to fully indemnify and hold harmless, and, upon JUMP’s request, defend, JUMP and its officers, directors, employees and agents harmless from and against all claims, damages and losses of any type, expenses (including reasonable legal fees), actions, demands, liabilities, settlements, or judgments that result from or arise out or which such persons may suffer or incur as a result of or arising out of or in any way connected with Customer’s use of the Content  or any breach by Customer of this Agreement.

4.0          TERMINATION

4.1          Termination.  This Agreement may terminated by JUMP, in full or in part immediately in the event of a breach of this Agreement by Customer.

4.2          Effects of Termination.  Upon any termination of this Agreement (except in circumstances of a partial termination by JUMP where JUMP has advised Customer to retain the Content) the License shall immediately terminate and Customer shall cease all use of the Content and the Modified Lesson Content and within ten (10) calendar days of the termination date return, or at the direction of JUMP destroy, all Content (and provide a certificate attesting to the return or destruction of all Content) as is satisfactory to JUMP, acting reasonably.

5.0          GENERAL PROVISIONS

5.1          (a) This Agreement constitutes the entire agreement between the parties hereto pertaining to all the matters herein and supersedes all prior agreements, proposals, understandings, negotiations and discussions between the parties, whether oral or written and may only be amended or modified by agreement of the authorized representatives of the parties. No additional term or condition included in any Customer purchase order or other document issued by Customer that has not previously been agreed to in writing by JUMP shall bind JUMP. (b) This Agreement shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein. For the purpose of all legal proceedings this Agreement shall be deemed to have been performed in the Province of Ontario, Canada and the parties expressly confirm that the law of the Province of Ontario is the proper law. The parties irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of Ontario in respect of all matters and disputes arising hereunder. (c) It is the express wish of the parties hereto that this Agreement be drawn up in English. La volonté expresse des parties aux présentes est que ce Agreement soit rédigé en anglais. The parties hereto hereby waive any right to use and rely upon any other language. (e) This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by each of the parties hereto, their respective successors and permitted assigns.  Customer may not assign all or any part of this Agreement, without the prior consent of JUMP. JUMP may assign this Agreement without the consent of Customer at any time. (f) No delay or omission by a party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant.  All waivers must be in writing and signed by the party waiving its, his or her rights. (g) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law. (h) The provisions of Sections 1.5, 2.0, 3.0, 4.2, 5.0 and any other terms herein which expressly state that such terms will survive shall survive the termination or expiration of this Agreement for any reason. (i) Except as otherwise provided in this Agreement, all notices, requests, claims, demands and other communications required or permitted to be given hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by commercial overnight courier service (with recipient signature required), or by registered or certified mail (postage prepaid, return receipt requested) to the respective party at the addresses for each first written above, as may be changed by either party in accordance with the terms of this Section. (j) In this Agreement: (i) all usage of the word “including” or “include” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation”; (ii) the division of this Agreement into separate Articles, Sections, Subsections and Schedule(s) and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement; (iii) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; (iv) if any action is required to be taken pursuant to this Agreement on a day which is not a business day in Toronto, Ontario, then such payment or action, as the case may be, shall be made or taken on the next day that is business day in Toronto, Ontario; and (v) the terms and conditions of this Agreement shall not be construed in favour of or against any party hereto by reason of the extent to which any party or its, his or her professional advisors participated in the preparation of this Agreement.

 

Date Modified: September 7, 2012