LEXIA APPLICATION END USER LICENSE AGREEMENT
This Lexia Application License Agreement (“License”) is a contract between you, the individual completing the order for access to and use of the products, materials and/or services described below on behalf of your organization (“Licensee”), and Lexia Learning Systems LLC (“Lexia” or “Licensor”) and governs Licensee's use of the Lexia products, materials, and/or services. The license granted hereunder is conditioned upon Licensee's acceptance of the terms set forth herein. Licensee and Lexia are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
“Authorized User” means Licensee and/or any student, participant, employee or other personnel receiving access to the Lexia Application by or through Licensee.
“Lexia” means Lexia Learning Systems LLC, and/or any of its subsidiaries or affiliates, as set forth in the Order Form.
“Lexia Application” means the product(s) and/or services offered under the Lexia® or other Lexia-owned brand as specified in the applicable Order Form, for which Licensee has rightfully obtained a license, including without limitation any software, services, companion materials, training, documentation or related products, accessed on or through, or downloadable from, a Lexia-designated website (the “Website”), as well as any Lexia or third party applications embedded within or provided by Lexia to deliver or enable delivery of the functionality of the Lexia Application, including those installed on any third party server related thereto, along with all services, documentation, reports and/or other ancillary materials provided by Lexia in conjunction with the Lexia Application (together with any updates to, or new releases of, the foregoing that are made available to Licensee by Lexia), licensed by Lexia to Licensee under the applicable Order Form and pursuant to this License.
“Online” means the accessing of the Lexia Application using a web browser on a desktop or mobile device over the Internet.
“Order Form” means any order form(s), statements of work, or proposals provided by Licensor to Licensee detailing the number, level, type, subscription term and price of the licenses ordered by Licensee under this License, as well as any additional mutually agreed business terms for the order, as accepted and agreed to by Licensor.
1. IMPORTANT NOTICE ON LICENSE -- PLEASE REVIEW CAREFULLY.
A. General. THIS LICENSE IS A LEGAL AGREEMENT BETWEEN LICENSEE AND LEXIA. LICENSEE UNDERSTANDS AND ACKNOWLEDGES THAT LEXIA WOULD NOT HAVE ENTERED INTO THIS LICENSE WITH LICENSEE WITHOUT LICENSEE'S AGREEMENT TO BE FULLY BOUND BY THE TERMS OF THIS LICENSE.
THIS LICENSE CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY (SEE SECTION 10 BELOW). THIS PROVISION IS AN ESSENTIAL PART OF THE PARTIES' AGREEMENT.
B. Online Acceptance. BY PLACING AN ORDER WITH LEXIA, CLICKING ANY ACCEPTANCE BUTTON OF THE LEXIA APPLICATION, PAYING A LEXIA INVOICE, OR DOWNLOADING, INSTALLING OR OTHERWISE USING THE LEXIA APPLICATION, LICENSEE AGREES TO BE BOUND BY THE TERMS, CONDITIONS AND NOTICES OF THIS LICENSE, AND SHALL BE DEEMED TO HAVE ACCEPTED THIS LEGAL AGREEMENT IN FULL. YOU, THE INDIVIDUAL COMPLETING THE ORDER FOR, OR INSTALLATION OF, OR PAYMENT FOR, OR COMMENCING THE USE OF, THE PRODUCT ON BEHALF OF LICENSEE REPRESENT AND WARRANT THAT YOU ARE A REPRESENTATIVE OF THE LICENSEE WITH AUTHORIZATION TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE.
IF LICENSEE DOES NOT AGREE TO THESE PROVISIONS OR ANY OF THE OTHER TERMS OF THIS LICENSE, DO NOT CLICK THE ACCEPTANCE BUTTON (IF ANY) AND DO NOT USE OR ACCESS, OR ENABLE ANY AUTHORIZED USER TO ACCESS THE LEXIA APPLICATION. LICENSEE ALSO HAS THE RIGHT AT ANY TIME TO WITHDRAW LICENSEE'S CONSENT TO HAVE THIS LICENSE PROVIDED TO LICENSEE IN ELECTRONIC FORM. SHOULD LICENSEE CHOOSE TO WITHDRAW LICENSEE'S CONSENT TO HAVE THIS LICENSE PROVIDED TO LICENSEE IN ELECTRONIC FORM, LICENSOR WILL TERMINATE LICENSEE'S RIGHT TO USE THE LEXIA APPLICATION.
The Lexia Application is licensed, not sold. The Lexia Application is intended to be used by Licensee for the education and/or assessment (as applicable) of its Authorized Users only. Licensee may not use the Lexia Application for any other purpose, or other than in accordance with the terms of this License, without the express prior written authorization of Licensor in each instance. If Licensee accepts this License, and for so long as Licensee complies with the terms of this License, Licensor grants Licensee a limited, revocable, nonexclusive and nontransferable license to access and use, and to allow its Authorized Users to access and use, the Lexia Application for the subscription term specified in each applicable Order Form, subject to its payment obligations under each Order Form and the limitations and restrictions set forth in this License.
3. ADDITIONAL TERMS FOR THE LEXIA RAPID ASSESSMENT APPLICATION.
Notwithstanding anything to the contrary, the following additional terms shall apply to any purchase, license and/or use of the Lexia Reading Assessment for Prescriptive Instructional Data Application (“Lexia RAPID Assessment”). The Lexia RAPID Assessment Application is owned by Lexia and/or its third party licensors, inclusive of copyrighted software and materials proprietary to Florida State University Research Foundation, Inc. By accepting this License and/or using the RAPID Assessment Application, Licensee acknowledges that the Florida State University Research Foundation, Inc., is a third party beneficiary to the terms and conditions herein with respect to the RAPID Assessment Application and Licensee's use thereof. Any and all rights in the Lexia RAPID Assessment Application not expressly granted by this License are hereby reserved by Licensor and/or its third party licensors.
4. INTERNET AND SYSTEMS REQUIREMENTS.
Continuous Internet access, connectivity and certain minimum systems and technical requirements, such as installation of additional third party software (e.g., browser plug-ins), may be required to access and use the Lexia Application, which are not provided by Licensor and are the sole responsibility of Licensee. Information regarding minimum systems and technical requirements for the Lexia Application may be obtained by Licensee from the Lexia Website or Lexia Customer Support.
5. SECURITY AND PRIVACY.
A. Security. Licensee will take reasonable measures to maintain the security of user name and password information of Licensee's Authorized Users. Licensee will not save Licensee's user name(s)/password(s) on a workstation which may be used by multiple users, or permit Authorized Users to do so, as the sharing of user names and/or passwords to allow any other person to use the Lexia Application is expressly prohibited.
B. User Name and Password. Licensee acknowledges that access to the Lexia Application by Licensee and Authorized Users requires the creation of user accounts with Lexia (including selection of a username and password). Licensee acknowledges and agrees that Licensee is solely responsible for the use and security of user names and passwords. Licensee shall take such actions as may be necessary to maintain the confidentiality and prevent the unauthorized use of user names and passwords, and shall immediately notify Licensor in the event of a breach of Licensee security.
Licensee may not, and may not permit others to, directly or indirectly sell, rent, lease, loan, timeshare, or sublicense all or any part of the Lexia Application. The transmission of Licensee's user name, password or Activation ID to allow any person other than Licensee or an Authorized User to use the Lexia Application is expressly prohibited, and failure to comply may result in the suspension or termination of the right to continue to use the Lexia Application or receive support.
7. LIMITATIONS ON USE.
Licensee agrees not to, and not to permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to access or derive the source code or object code or any associated computer algorithms or models of all or any part of the Lexia Application, including but not limited to any methods, algorithms or models relating to literacy or other assessments, (b) copy, modify, translate, alter, change, or collect information that can be used to create derivative works of all or any part of the Lexia Application, (c) download, copy or collect information that could be used to copy all or any part of the Lexia Application, or access or use all or any part of the Lexia Application for any purpose other than for the educational and/or assessment purposes set forth herein, except as and only to the extent expressly authorized by applicable law notwithstanding this limitation, or as expressly authorized in writing by Licensor. Any such authorization supplied by Licensor, and any information obtained by Licensee through any such authorized use, may only be used by Licensee for the purpose expressly authorized by Licensor and may not be disclosed to any third party or used to create any software or work that is substantially similar to the Lexia Application or any component thereof. If the applicable Order Form specifies a maximum number of Authorized Users or concurrent users that may access the Lexia Application, Licensee agrees not to exceed such maximum number without the prior written approval of Licensor.
8. OWNERSHIP OF INTELLECTUAL PROPERTY.
Licensee acknowledges and agrees that Lexia or its third-party licensors own all rights, title and interest in and to the Lexia Application (including all software, code, algorithms, models, interfaces, text, photographs, graphics, animation, applets, music, video and audio incorporated therein and any related user guides and documentation), the Lexia trademarks, the URLs, and other marks related to the Lexia Application, all of which are covered by various protections including, without limitation, copyright, trademark, and trade secrecy law. Licensee agrees not to alter, remove, conceal, or otherwise change any trademarks, logos or other marks of Licensor or its third party licensors contained within the Lexia Application. Any and all rights relating to the Lexia Application not expressly granted by this License are hereby reserved by Licensor or its third party licensors. If Licensee suggests new features or functionality that Lexia, in its sole discretion, adopts for the Lexia Application, such new features or functionality will be the sole and exclusive property of Lexia and any and all claims of Licensee as to the same are hereby waived and released. Lexia reserves the right, in its sole discretion and without incurring any liability to Licensee, to update, improve, replace, modify or alter the specifications for and/or functionality of all or any part of the Lexia Application from time to time. By using the Lexia Application, Licensee agrees to automatically receive updates.
Lexia offers support to Licensees of the Lexia Application in accordance with its published support policies. Lexia reserves the right to change its support policy at any time by updating the policy on Lexia's website and without further notification to Licensee. Licensee's use of Lexia's customer support is governed by the hours of operation and other terms and conditions set forth at Lexia's website.
10. LIMITED WARRANTY, DISCLAIMERS, AND LIABILITY LIMITATIONS.
A. Limited Warranty and Disclaimer. Lexia warrants that the Lexia Application will perform substantially in accordance with the descriptions and specifications in the documentation accompanying the Lexia Application for the term of the relevant license granted in the applicable Order Form, under normal use. Licensor's sole liability and Licensee's sole remedy with respect to a breach of the foregoing warranty by Licensor during the 12-month warranty period shall be, at its option, the repair or replacement of the Lexia Application, or a refund of the fees paid by Licensee pursuant to this Agreement for the unused portion of the Lexia Application subscription term remaining under the applicable Order Form from the date written notice of defect was received by Licensor from Licensee. Notwithstanding anything to the contrary, (a) Licensor makes no representation or warranty with respect to any third party software and undertakes no obligations with respect to any third party software; and (b) Licensor makes no representation or warranty of any kind relating to any Licensee-provided content, its quality or any use thereof.
B. DISCLAIMER OF WARRANTIES. OTHER THAN AS STATED SECTION 10A ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS THIRD PARTY LICENSORS MAKE NO OTHER WARRANTIES OR PROMISES, WHETHER EXPRESS OR IMPLIED, OR BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, ABOUT THE LEXIA APPLICATION, THE EMBEDDED SOFTWARE OR ANY SERVICES PROVIDED HEREUNDER, AND PROVIDE THE LEXIA APPLICATION AND SUPPORT SERVICES (IF ANY) “AS-IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF SUCH LEXIA APPLICATION (IF ANY) SHALL BE WITH LICENSEE. THERE IS NO REPRESENTATION OR WARRANTY HEREIN AGAINST INTERFERENCE WITH LICENSEE'S ENJOYMENT OR AGAINST INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR AND LICENSOR'S THIRD PARTY LICENSORS DISCLAIM ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE LEXIA APPLICATION AND ANY SERVICES PROVIDED HEREUNDER, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY OR COMPLETENESS OF DATA, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR THAT LICENSEE'S USE OF THE LEXIA APPLICATION WILL BE UNINTERUPTED, VIRUS-FREE, OR ERROR-FREE. LICENSEE ACKNOWLEDGES THAT NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY THIRD PARTY LICENSORS HEREIN.
C. LIMITATIONS OF LIABILITY. IN NO EVENT WILL LICENSOR OR LICENSOR'S THIRD PARTY LICENSORS, OR ANY OTHER PERSON OR ENTITY BE LIABLE TO LICENSEE OR ANY AUTHORIZED USER FOR (A) ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING ANY LOSSES RELATING TO LICENSEE OR LICENSEE'S BUSINESS, SUCH AS LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST SAVINGS, EVEN IF LICENSOR OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY CLAIM BY ANY THIRD PARTY. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY. IN ADDITION, IF LICENSEE COULD HAVE AVOIDED DAMAGES BY TAKING REASONABLE CARE, NEITHER LICENSOR NOR LICENSOR'S THIRD PARTY LICENSORS WILL BE LIABLE FOR SUCH LOSSES.
D. STATUTORY CONSUMER RIGHTS. NOTHING IN THIS LICENSE SHALL AFFECT THE STATUTORY RIGHTS, IF ANY, DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE APPLICABLE TO ANY PARTY DEALING AS A CONSUMER.
11. TERMINATION AND SURVIVAL.
A. Term. Subject to the terms hereof, this License is effective for the term of the Lexia Application subscription as set forth in the applicable Order Form. Licensee may terminate any Order Form and its rights under this License at any time, provided however, that Licensee will not be entitled to any refund of any license, subscription, hosting or other fees set forth in the Order Form, or any portion thereof, unless otherwise expressly agreed by Licensor in writing in the applicable Order Form. By accepting this License, Licensee authorizes Licensor to immediately terminate Licensee's and/or any Authorized User's rights, without notice, under this License, including access to the Lexia Application, if Licensee or any Authorized User fails to comply with any terms of this License, including the prompt payment of fees set forth in the applicable Order Form. Restrictions imposed by Licensor for a breach of this License may include, but are not restricted to:
- (i) Terminating the IP address of a non-compliant workstation; and
- (ii) Terminating account access to the Lexia Application.
B. Termination. Upon receipt of notice of termination, Licensee and any Authorized User must immediately cease all use of the Lexia Application. Licensor may require Licensee to certify in writing that Licensee has complied with this requirement. For clarity, except in the event of Licensor's termination of an order or this License due to material breach by Licensee, the term of any individual subscription license acquired under this License shall be as set forth in the applicable accepted Order Form, and the rights in such subscription licenses shall not be transferred from the entity named as the receiving party in the applicable Order Form to any other entity. The provisions of Sections 3, 7, 8, 10, 11, 12, 13, 14, 15, and 21, and any other obligations or restrictions that expressly or by their nature are to continue after termination shall survive the termination of this License for any reason, but this sentence shall not imply or create any continued right to use Lexia Application after termination of this License.
12. CONFIDENTIALITY & DATA PRIVACY.
A. 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 License Agreement and shall not be disclosed to any other party (except to Lexia's employees and authorized agents and providers who (a) require access to such information to enable Lexia to provision the Lexia Application to its Licensees, and (b) are under contractual obligations of confidentiality to Lexia) without the prior written consent of the student's parent (or of the student if he/she is age 18 or older). If a parent, legal guardian or student contacts Lexia with a request to review FERPA Protected Data or correct erroneous information, or if an agency, court, law enforcement or other entity requests access to FERPA Protected Data, Lexia will (unless prohibited by writ or compulsory legal process) promptly notify Licensee and use reasonable and good faith efforts to assist Licensee in fulfilling such requests, as directed by the Licensee. Upon Licensee's written request following termination of this License Agreement and all access to the Lexia Application, Lexia will take steps to destroy the FERPA Protected Data in its possession within sixty (60) days from the date such written request was received by Lexia; otherwise, Lexia will destroy such 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.
B. Notwithstanding the foregoing, Lexia reserves the right to collect and retain data generated through the use by Licensee and Authorized Users of the Lexia Application, from which all personally identifiable information and attributes about such data has been removed (“De-identified Data”). De-identified Data as defined herein shall not be deemed subject to legal restrictions, and Lexia may use and disclose De-identified Data for any lawful purposes, including, without limitation, benchmarking, development of best practices, improvement or development of products and services, and/or 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 that identifies Licensee or Authorized User as the source of that data without the prior written consent of Licensee or Authorized User.
13. FEES AND PAYMENTS.
Licensee agrees to pay Licensor the fees for the Lexia Application as set forth on the applicable Order Form. Unless otherwise expressly agreed in writing, Licensor shall invoice Licensee for the total amount stated on each Order Form. Unless otherwise specified in the Order Form, all invoiced amounts shall be due and payable within thirty (30) days of date of invoice. Payments due hereunder shall be made by Licensee without any deduction, setoff or bank charges to Licensor at the banking institution in the United States designated by Licensor in U.S. dollars, unless otherwise mutually agreed and expressly set forth in the applicable Order Form. All payments made by Licensee are non-refundable. Unless expressly prohibited under applicable law, overdue payments (other than amounts that are the subject of a legitimate dispute) shall accrue interest at the lesser of one and one half percent (1.5%) per month or the maximum allowable interest under applicable law from the due date until paid, and Licensee shall pay Licensor's costs of collection, including Licensor's reasonable attorneys' fees and court costs. The amounts due to Licensor as set forth in the applicable Order Form do not include, and Licensee shall be solely responsible for payment of, any sales, use, property, value-added or other taxes (including any amounts to be withheld for the purpose of paying the foregoing) relating to, resulting from or based on use of the Lexia Application. If Licensor is required to pay any of the foregoing taxes, then such taxes shall be billed to and promptly paid by Licensee.
14. GOVERNING LAW AND FORUM.
A. Governing Law. This License will be governed in all respects, by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without reference to its principles relating to conflicts of law, and each Party agrees that any action arising out of or related to this License must be brought exclusively in a US state or Federal court in the Commonwealth of Massachusetts, provided however, that if Licensee is a US public school or school district, or an agency or department of the US federal or any state government, then any claims or disputes between the Parties related to this License shall be governed by the laws of the state identified in Licensee’s address as set forth in the applicable Order Form, and all actions shall be brought in the appropriate state or federal courts located in such state.
B. Notwithstanding Section 14A above, if the Licensor address specified on the Order Form is in Canada, this Agreement shall be governed by and construed in accordance with the law of the Province of Ontario and the federal laws of Canada applicable thereto, excluding those provisions relating to conflicts of laws. The parties hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario or the Federal Court of Canada sitting in that province.
C. Exclusion. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
D. Injunctive Relief. Notwithstanding the above, Licensor shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Licensor, such action is necessary or desirable.
15. ENTIRE AGREEMENT, TRANSLATION, ASSIGNMENT.
A. Entire Agreement. Except as expressly provided herein, this License constitutes the entire agreement between the Parties with respect to the use of the Lexia Application by Licensee and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License, or action, or delay, will be binding upon Licensor unless in writing and signed by Licensor.
B. Language. In the event of a dispute between the English and any translated version, the English version of this License shall prevail. It is the express wish of the parties that this agreement, as well as all correspondence and documents relating to this agreement, be written in English. The following is a French translation of the preceding sentence: Il est de la volonté expresse des parties que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglaise.
C. Assignment. Licensor may assign this License, in whole or in part, at any time with or without notice to Licensee. Licensee may not assign, delegate or otherwise transfer this License, or assign, transfer or sublicense any rights in the Lexia Application without the express, prior written consent of Licensor.
All provisions of this License apply to the maximum extent permitted by applicable law. If any part of this License is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this License will continue in effect.
Licensee acknowledges that the Lexia Application is subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to the Lexia Application, including the U.S. Export Administration Regulations and Office of Foreign Assets Control Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
18. FORCE MAJEURE.
No failure or omission by either Party to carry out or observe any of the terms and conditions of this License (other than payment obligations) shall give rise to any claim against such Party or be deemed a breach of this License if such failure or omission arises from an act of God or any other force majeure, an act of any government, or any other cause beyond the reasonable control of the affected Party.
Failure to insist upon strict compliance with any of the terms, covenants, or conditions of this License shall not be deemed a waiver of that term, covenant, or condition or of any other term, covenant, or condition of this License. Any waiver of relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time.
20. THIRD PARTY RIGHTS.
Except as expressly set forth herein, nothing in this License shall be construed as giving any person or entity, other than the parties hereto and their successors and permitted assigns, any right, remedy or claim under or in respect of this License or any provision hereof.
All notices, requests, or other communications hereunder shall be in writing, addressed to the parties at the addresses set forth in the Order Form and in the case of notice to Licensor relating to Sections 11, 12, 14, or 15C shall be addressed to the attention of the Legal Department. Notices mailed by registered or certified mail shall be conclusively deemed to have been received by the addressee on the fifth business day following the mailing of sending thereof. If either Party wishes to alter the address to which communications to it are sent, it may do so by providing the new address, in writing, to the other Party.
Last Revised: July 27, 2015