End User License Agreement

Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee the following licenses as applicable to the materials requested by Licensee:

1. A limited, non–exclusive, revocable, right and license to use the Printed Content, including student textbooks, teacher edition textbooks, curriculum or lesson plans, teacher guides, teacher keys, answer keys, solution keys, and/or student kits (collectively, the “Printed Content”) requested by Licensee, for its educational, noncommercial use.
2. A limited, non–exclusive, revocable, right and license to download and use the Digital Content, including digital textbooks, art, teaching aids, assessments, electronic versions of Printed Content (such as pdf copies of video manuals), and/or videos (collectively, the “Digital Content”) requested by Licensee, for its educational, noncommercial use only.

The Printed Content and the Digital Content are collectively referred to herein as the “Licensed Content.”

1. Licensee shall pay Licensor a non–refundable (unless the materials are returned before use) per–user license fee for use of the Licensed Content, corresponding to the total fee for the requested materials as stated on Licensor’s website or order form.

1. The licenses granted herein include only the right for Licensee to use the Licensed Content for its educational, noncommercial use. Licensor retains all right, title, and interest in and to the Licensed Content, including all intellectual property rights in the copyrights, trademarks, and/or patents. The Licensed Content is protected in the United States and worldwide by intellectual property laws and treaties. Licensee does not acquire ownership rights to any of the Licensed Content through its use of the materials, or any right to reproduce, prepare derivative works, distribute, publicly perform, or publicly display the Licensed Content except as specifically set forth herein. Licensee agrees to abide by any and all copyright and trademark notices, information, or restrictions associated with the Licensed Content and agrees that it will not infringe, either directly or indirectly, Licensor’s rights.

1. Licensee may not use the Licensed Content for any commercial or promotional purpose.
2. Licensee may not: (i) reproduce, prepare derivative works, or publicly perform or display the Licensed Content, except as provided herein; (ii) distribute the Licensed Content or copies thereof to the public by sale or other transfer, or by rental, lease, or lending, except as provided in Section 6; and/or (iii) remove any notices, labels, or marks from the Licensed Content, including notices of copyright, trademark, or other proprietary rights.

1. Licensee may perform or display the Licensed Content during the applicable license term(s) solely for its educational use. Licensee may combine the Digital Content with its own content. Any right, title or interest arising in any derivative work created using the Licensed Content shall not entitle Licensee to use the Licensed Content beyond the expiration or termination of this Agreement and/or the licenses granted herein. Licensor reserves the right (but is not obligated) to update Digital Content, and by accepting this license, Licensee agrees to receive automatic updates to that content within the applicable license term(s).

1. Licensee may transfer the Printed Content, provided Licensee does so in its printed form as received from Licensor.

1. In the event that Licensor reasonably believes that the Licensed Content is being used in contravention of the terms in this Agreement, Licensor shall have the right, during normal business hours and upon five (5) days’ prior written notice, to inspect Licensee’s records and equipment in order to ensure that Licensee is in compliance with the Agreement. Licensor will bear the expenses of such audit unless the audit demonstrates that Licensee is not in compliance with this Agreement, in which case Licensee shall promptly pay Licensor’s standard license fee(s) for any use found to be outside the scope of this Agreement, along with Licensor’s reasonable audit costs.

1. Licensor reserves the right to collect and analyze data relating to Licensee’s use of the Digital Content. Licensor uses this data to improve the Digital Content, for marketing research, to make promotional offers from Licensor, and to assess Licensee’s compliance with the terms and conditions of this Agreement. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Licensor’s systems and customers, or to ensure the integrity and operation of Licensor’s business and systems, Licensor may disclose any information it considers necessary or appropriate, including, without limitation, user profile information (e.g., name, e–mail address, etc.), IP address and traffic information, and usage history, subject to applicable law.

1. The license for the Printed Content and Digital Content, with the exception of digital student textbooks and digital assessments, shall remain in effect for so long as those materials remain in use by the Licensee. Upon expiration of the license, Licensee agrees to delete any copies of the Digital Content.
2. The license for digital assessments shall automatically expire twelve (12) months from the date Licensee accepts this Agreement or the start date requested by the customer, whichever is later. Upon expiration of the license, Licensee agrees to delete any copies of the digital assessments.
3. The license for digital student textbooks shall automatically expire twelve (12) months from the date Licensee accepts this Agreement or the redemption of the digital student textbook, whichever is later. Upon expiration of the license, Licensee agrees to delete any copies of the digital student textbooks.
4. Licensor shall have the right to terminate this Agreement and/or the licenses granted herein at any time upon five (5) days’ written notice in the event that Licensee breaches a material term of this Agreement. In the event of termination for a breach of a material term of this Agreement, Licensee agrees to delete any copies of the Digital Content.

1. Licensee shall indemnify, defend and hold harmless Licensor, including Licensor’s related entities, affiliates, successors and assigns, and each of their respective officers, directors, employees and agents, from and against all claims, causes of action, losses, fees, liabilities, damages, judgments, costs and expenses, including reasonable attorneys’ fees, expert witness fees, court costs, and/or costs of appeal, in any action arising out of or related to enforcement of or a breach of this Agreement, and/or arising out of or related to the use or modification of any of the Licensed Content in violation of this Agreement. Licensee acknowledges and agrees that Licensor would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached. Accordingly, Licensee agrees that Licensor shall be entitled to injunctive relief, in addition to any other remedies, to prevent breaches of the provisions of this Agreement and to enforce specifically, without posting bond, this Agreement and the terms and provisions hereof.

1. NO WARRANTIES. THE LICENSED CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON–INFRINGEMENT.

1. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL LICENSOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY NATURE, INCLUDING LOSS OF PROFIT, BUSINESS, GOODWILL OR BUSINESS OPPORTUNITY, EVEN IF LICENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING FOR DAMAGES INCURRED BY LICENSEE OR ANY THIRD PARTY. IN THOSE JURISDICTIONS WHICH DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, LICENSOR’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED IN SUCH JURISDICTIONS. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF FIFTY U.S. DOLLARS (US$50.00).

1. Entire Agreement; Amendments; Non–Waiver. This Agreement, and the associated order form, constitute the entire agreement between the parties with respect to the Licensed Content and supersede any and all prior or contemporaneous oral or written communications regarding such subject matter. This Agreement cannot be altered, amended, or modified in any respect except by a writing duly executed by Licensor. The waiver by Licensor of any breach hereof shall not be deemed a waiver of any prior or subsequent breach and Licensor’s failure to enforce any provision hereof on any occasion shall not be deemed to be a waiver of any preceding or succeeding breach of such provision or any other provision hereof.
2. Controlling Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, notwithstanding any conflicts or choice of law provisions. Licensee hereby consents to the exclusive jurisdiction of the state and federal courts located in Escambia County, Florida, and agrees that any dispute whatsoever arising between the parties hereto shall be brought exclusively in Escambia County, Florida.
3. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid, illegal, unenforceable or void for any reason, the remainder of this Agreement shall continue in full force and effect as if the void, illegal, invalid, or unenforceable provision never had been included.
4. Relationship of the Parties. Nothing in this Agreement shall be construed to create a relationship between the parties other than as licensor and licensee, and Licensee shall be responsible for supervision and control of all persons utilizing the Licensed Content.
5. Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made, and received three (3) days following the day when deposited with the United States Postal Service as registered or certified mail, postage prepaid, return receipt requested, and addressed to the address on file for the Licensee or, if to Licensor, to: Abeka Academy, P.O. Box 17600, Pensacola, FL 32522–7750.
6. Proof of Tax Exemption. Licensee agrees to furnish proof of exemption from state sales tax where applicable or shall remit payment for all applicable taxes with the payments due under this Agreement.
7. Customs’ Fees. All Customs’ fees are the responsibility of Licensee.