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LEXIA LEARNING SYSTEMS, INC.

LICENSE AGREEMENT

This License Agreement (the “Agreement”), which may be amended from time to time, is entered into by and between Lexia Learning Systems, Inc. (“Lexia”), and an educational institution or other entity engaged in educational activity (“Licensee”). This Agreement also may be subject to the terms and conditions of a separate Purchase Order or Services Agreement between Lexia and Licensee, the terms of which are incorporated herein by reference. Pursuant to the terms and conditions herein, Licensee seeks to rightfully obtain a license or licenses to use or evaluate certain proprietary products of Lexia and/or to permit Authorized Users duly authorized by Licensee to use or evaluate such Lexia products. This License Agreement is the complete and exclusive statement of the rights, obligations and responsibilities of Licensee, each Authorized User of Licensee, and Lexia with respect to the Lexia Application (as defined below).

BY USING THE LEXIA APPLICATION, OR BY AUTHORIZING ITS AUTHORIZED USERS TO USE THE LEXIA APPLICATION, LICENSEE OR AUTHORIZED USER, AS THE CASE MAY BE, SIGNIFIES THAT IT UNCONDITIONALLY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE OR AN AUTHORIZED USER DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, LICENSEE OR ITS AUTHORIZED USER, AS THE CASE MAY BE, IS PROHIBITED FROM USING THE LEXIA APPLICATION.

For good and valuable consideration, the sufficiency of which is hereby acknowledged, Licensee, each Authorized User and Lexia agree as follows:

1. Definitions. The following definitions will apply to the following terms used in this Agreement.

1.1. “Authorized Users” means students, and parents or guardians of students, who are enrolled in Licensee’s educational institution or other entity engaged in educational activity, and teachers, instructors and administrators employed by Licensee, in each case whom Licensee has authorized to use or evaluate the Lexia Application pursuant to the terms and conditions of this Agreement and any Purchase Order or Services Agreement between Lexia and Licensee.

1.2. “Lexia Application” means the specific proprietary products of Lexia for which Licensee has rightfully obtained a license or licenses which are accessible on, through or downloadable from the Lexia websites on the World Wide Web located at www.lexialearning.com or such other websites as Lexia may designate from time to time, together with all Lexia client applications installed on any third-party server related thereto. The term “Lexia Application” may also include certain third party applications that are embedded within or provided by Lexia together with such proprietary products of Lexia.

2. License Grant. Subject to Licensee’s payment of the applicable license, hosting, and/or subscription fees and to Licensee’s compliance with the other terms and conditions of this Agreement and the terms of any separate written Purchase Order or Services Agreement between Licensee and Lexia, Lexia hereby grants to Licensee a limited, nonexclusive, nontransferable license to use or to evaluate, and to permit Licensee’s Authorized Users to use or to evaluate, the Lexia Application.

3. License Obligations and Restrictions.

3.1. Licensee may only use, and may only authorize Authorized Users to use, the Lexia Application to the extent that Licensee has rightfully obtained the requisite number of licenses or subscriptions for such use pursuant to a separate written Purchase Order or Services Agreement, as amended from time to time, between Licensee and Lexia Licensee and Authorized User may only use the Lexia Application for Licensee’s internal educational uses. Licensee and Authorized User may only use any third party applications that are embedded within or provided by Lexia together with the Lexia Application solely as integrated with, and for running and extracting data from, the Lexia Application; without limitation, Licensee and Authorized User may not use any such applications as standalone applications.

3.2. Licensee and Authorized User may not copy any portion of the Lexia Application, or allow Authorized Users to copy any portion of the Lexia Application, unless expressly permitted under this Agreement. Upon Lexia’s request, Licensee may be required to provide written confirmation that, to the best of Licensee’s knowledge, the Lexia Application has not been copied in any manner not expressly permitted under this Agreement.

3.3. Only Licensee and Licensee’s Authorized Users are permitted to use the Lexia Application. Licensee will ensure that all use by Authorized Users of the Lexia Application will be pursuant to the terms and conditions of this Agreement.

3.4. Licensee and Authorized User may not resell, transfer, assign, sublicense, pledge, lease, rent or share the Lexia Application, any portion thereof or its rights hereunder. Licensee and Authorized User may not use the Lexia Application or any portion thereof in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment. Licensee and Authorized User may not disclose any portion of the Lexia Application to any third party, unless expressly permitted under this Agreement.

3.5. Licensee and Authorized User may not change, modify, disassemble, decompile, “unlock,” reverse engineer or in any manner decode the Lexia Application.

3.6. To the extent applicable, Licensee and Authorized User must comply with all export laws and regulations. For clarification, but not limitation, under no circumstances will the Lexia Application be made available contrary to U.S. export laws or regulations. The Lexia Application shall not be made available to persons listed in the “Denied Persons List,” or the Debarred List or to countries embargoed by the U.S. Government. The Lexia Application further shall not be made available to parties listed on the Entities List, a list of parties that are identified as having activities related to weapons of mass destruction maintained by the U.S. Department of Commerce.

4. Intellectual Property Rights. Lexia and its licensors reserve all right, title and interest in and to the Lexia Application not expressly granted to Licensee hereunder. Without limitation, all third party licensors and suppliers retain all right, title and interest in third party software and all copies thereof, including all copyright and intellectual property rights. All trademarks and service marks contained in or on or associated with the Lexia Application are the trademarks, services marks, registered trademarks or registered service marks of Lexia or its licensors, as applicable.

5. Data Privacy and Collection.

5.1. Any personally identifiable information about a student protected under the Family Educational Rights and Privacy Act of 1974, as amended (20 U.S.C. § 1232g et seq.) and disclosed to Lexia by Licensee or by an Authorized User (“FERPA Protected Data”) shall be used solely for the purposes of the disclosure to fulfill obligations under this Agreement and shall not be disclosed to any other party (except to Lexia’s employees and authorized agents under an obligation of confidentiality) without the prior written consent of the student’s parent (or of the student if he/she is age 18 or older). Upon Licensee’s written request upon termination of the Agreement, Lexia shall destroy any FERPA Protected Data in its possession within sixty (60) days from the termination date; otherwise, Lexia shall destroy any FERPA Protected Data within a commercially reasonable period of time. Lexia may, at its sole election, provide Licensee with the FERPA Protected Data in its possession.

5.2. Notwithstanding the foregoing, Lexia reserves the right to collect and retain data generated by Licensee and Authorized Users from which all personally identifiable information has been removed and attributes about such data (“De-identified Data”). De-identified Data is not subject to any legal restrictions, and Lexia may use and disclose De-identified Data for any lawful purposes, including without limitation benchmarking, development of best practices, product and services development, and research and statistical purposes without reimbursement or notification to, or consent or authorization from, Licensee or Authorized Users. All De-Identified Data collected by Lexia in connection with Licensee or Authorized User’s use of the Lexia Application shall be owned by Lexia. Lexia shall not use or publish such De-Identified Data in any way which identifies Licensee or Authorized User as the source of that data without the prior written consent of Licensee or Authorized User.

6. Term and Termination

6.1. This Agreement will remain in full force and effect for the rightfully obtained license, subscription, or services agreement period applicable to the licensed Lexia Application as identified in the Purchase Order or Services Agreement between Lexia and Licensee, unless earlier terminated. The right to use the Lexia Application shall be subject to the continuing effectiveness and validity of the Purchase Order or Services Agreement between Lexia and Licensee. The terms of this license will govern any upgrades provided by Lexia that replace and/or supplement the original Lexia Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

6.2. Licensee may terminate this Agreement at any time; provided however that Lexia will not refund any license, subscription, hosting or order fees, or any portion thereof, unless Lexia agrees to do so in writing in advance of termination.

6.3. Lexia may terminate this Agreement on written notice to Licensee if Licensee breaches any provision of this Agreement or fails to make any payment to Lexia as and when due, without prejudice to any other rights or remedies of Lexia. Lexia may also require Licensee by written notice to rescind Authorized User’s authorization to use the Lexia Application if any Authorized User breaches any provision of this Agreement.

6.4. Upon any termination of this Agreement, the license granted to Licensee under this Agreement will terminate, and Licensee and all Authorized Users must immediately cease using the Lexia Application and immediately destroy all copies of the Lexia Application and any portion thereof in Licensee’s or Licensee’s Authorized Users’ possession or control. Upon termination of this Agreement for any reason, Lexia shall not be obligated to purge any De-Identified Data from its systems or to provide Licensee or any Authorized Users with a copy of the collected De- Identified Data.

6.5. All provisions of this Agreement which by their express terms or nature are intended to survive will survive the termination of this Agreement.

7. General Disclaimers.

7.1. LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR LICENSEE’S USE, AND THE USE BY AUTHORIZED USERS, OF THE LEXIA APPLICATION. THE LEXIA APPLICATION IS SUPPLIED “AS IS” AND “AS AVAILABLE,” AND LEXIA MAKES NO REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION CONTAINED IN THE LEXIA APPLICATION. LEXIA DOES NOT GUARANTEE THAT ANY PARTICULAR RESULT WILL BE OBTAINED FROM USE OF THE LEXIA APPLICATION. LEXIA DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, ALL W ARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE W ARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

7.2. LICENSEE AND AUTHORIZED USER ACKNOWLEDGE THAT THE LEXIA WEBSITES MAY FROM TIME TO TIME BE UNAVAILABLE DUE TO SCHEDULED DOWNTIME, REASONABLE NEEDS FOR MAINTENANCE, REASONABLE PERIODS OF FAILURE OF EQUIPMENT, COMPUTER PROGRAMS OR COMMUNICATIONS, OR EVENTS BEYOND THE CONTROL OF LEXIA. LEXIA MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS WITH RESPECT TO THE AVAILABILITY OF THE LEXIA WEBSITES OR WEB SERVERS.

8. Limitation of Liability. IN NO EVENT WILL LEXIA OR ITS AFFILIATES, OFFICERS, DIRECTORS, OR SUPPLIERS BE LIABLE TO LICENSEE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, FAILURE OF PERFORMANCE, ERROR, OMISSION, DEFECT, DELETION, DELAY, OR BUSINESS INTERRUPTION, NOR WILL LEXIA OR ITS AFFILIATES, OFFICERS, DIRECTORS, OR SUPPLIERS BE LIABLE TO AUTHORIZED USER FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LEXIA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES IN EXCESS OF THE LICENSE OR SUBSCRIPTION FEES RECEIVED BY LEXIA FOR THE PRODUCT OR SERVICE COMPLAINED OF IN THE PREVIOUS 12-MONTH PERIOD.

9. Licenses to U.S. Government. This paragraph applies to all acquisitions of licenses or subscriptions to the Lexia Application by or for the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government (collectively, the “Government”). The Government hereby agrees that the Lexia Application and any accompanying documentation are respectively “commercial computer software” and “commercial computer software documentation” within the meaning of the acquisition regulation(s) applicable to this procurement. These terms and conditions alone shall govern the Government’s use of the Lexia Application and any accompanying documentation and shall supersede any conflicting contractual terms or conditions. If these terms and conditions fail to meet the Government’s needs or are inconsistent in any respect with Federal law, the Government must not use the Lexia Application or documentation. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT. 1988).”

10. Choice of Law. This Agreement, and any controversy or claim arising out of or relating to this Agreement or from use of the Lexia Application, will be governed exclusively by the law of the Commonwealth of Massachusetts, without regard to its choice of law provisions.

11. Severability. Should any term of this Agreement be declared void or unenforceable, such declaration will have no effect on the remaining terms hereof.

12. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions with regard to such breach or any future breach.

13. Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties and governs the use of the Lexia Application (but exclude any services that Lexia may provide to the Licensee or Authorized User under a separate written agreement) and supersede any and all prior or contemporaneous agreements, oral or written, and all other communications relating to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless set forth in a document that expressly amends this Agreement signed by authorized representatives of both parties. In the event the terms and conditions of any Purchase Order or Services Agreement between Lexia and Licensee conflict with or are in addition to the terms and conditions of this Agreement, the terms and conditions of this Agreement will prevail, unless otherwise specifically provided for in the Purchase Order or

Services Agreement or unless an authorized representative of Lexia expressly agrees otherwise in writing.

END OF AGREEMENT

STANDARD EULA 7/18/2012


 

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