CORE PERFORMANCE CONCEPTS
MATERIAL LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE CORE PERFORMANCE CONCEPTS COURSE MATERIALS, SOFTWARE, OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “MATERIAL”).
THE TERMS AND CONDITIONS OF THIS MATERIAL COPYRIGHT LICENSE AGREEMENT AND THE CORE PERFORMANCE CONCEPTS ORDERING DOCUMENT YOU EXECUTED OR AGREED TO, AND (WHERE APPLICABLE) ANY Core Performance Concepts License Key information PROVIDED BY Core Performance Concepts, IN EACH CASE GOVERNING YOUR LICENSE TO THE MATERIAL (COLLECTIVELY, THE “PURCHASE RECEIPT”) (THIS COPYRIGHT LICENSE AGREEMENT AND THE PURCHASE RECEIPT COLLECTIVELY, THIS “AGREEMENT”) GOVERN USE OF THE MATERIAL UNLESS YOU AND CORE PERFORMANCE CONCEPTS CORPORATION (“CPC”) HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT GOVERNING USE OF THE MATERIAL. FOR THE AVOIDANCE OF DOUBT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF YOU HAVE AN EXISTING VALID PAID LIMITED LICENSE TO CORE PERFORMANCE CONCEPTS MATERIAL PURSUANT TO A SEPARATE AGREEMENT BETWEEN YOU AND CORE PERFORMANCE CONCEPTS, THE TERMS OF SUCH SEPARATE AGREEMENT WILL CONTINUE TO APPLY TO YOUR USE OF THE MATERIAL.
Core Performance Concepts is willing to license the MATERIAL to you only upon the condition that you accept all the terms contained in this Agreement. By clicking on the “I accept” button below or by downloading, installing or using the MATERIAL, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then Core Performance Concepts is unwilling to license the MATERIAL to you, and you must return the MATERIAL to the place of purchase for a refund, if you have paid for the license to the MATERIAL, or, if Core Performance Concepts has made the MATERIAL available to you without charge, you must destroy all copies of the MATERIAL. Your right to return the MATERIAL for a refund expires 30 days after the date of purchase.
1. Grant of License.
a. Paid Subscription License. If you purchased a license to the MATERIAL from Core Performance Concepts, then the license grant and license restrictions applicable to your use of the MATERIAL are as set forth in the applicable license exhibit attached hereto for the type of MATERIAL indicated on your Purchase Receipt or applicable purchasing documentation accompanying the MATERIAL.
b. Trial License. If you have obtained a trial or evaluation version of the MATERIAL from Core Performance Concepts, then conditioned upon your compliance with the terms and conditions of this Agreement, Core Performance Concepts grants you a non-exclusive and non-transferable license to Execute the MATERIAL solely for testing and evaluation purposes, and not for production use. The foregoing trial license permits Execution of only such number of copies of the MATERIAL, and on such number of Computers, as is expressly permitted by Core Performance Concepts with respect to such trial. If no such number of copies or Computers is specified by Core Performance Concepts, the foregoing trial license permits Execution of a single copy of the MATERIAL on a single Computer.
a. Limited Use. This permissions granted to you under this Agreement apply only to the uses and purposes stated herein and you may distribute, publicly display, publicly perform, or use in any advertising the Material only under the terms of this Agreement. You may not sublicense Material. Any use that is inconsistent with the limited license provided hereunder shall be a violation of Licensor’s copyright and subject to copyright law.
B. No Modification. YOU SHALL NOT CREATE ELECTRONIC, ONLINE, OR WEB-BASED WORKS FROM, POST ON A WEBSITE, modify, copy, create derivative works from, distribute, transmit, display, perform, reproduce, publish, license, sublicense, transfer, assign, rent, sell, or otherwise convey the material obtained from the licensor in any way not specifically granted in Section 1 above without the prior written consent of Licensor.
3. Ownership. Each copy of the MATERIAL is licensed, not sold. You own the media on which the MATERIAL is recorded, but you acknowledge and agree that Core Performance Concepts retains ownership of the MATERIAL itself and any related data or source documentation used by Core Performance Concepts, including all intellectual property rights therein. The MATERIAL are protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the MATERIAL as delivered to you. Core Performance Concepts reserves all rights in the MATERIAL not expressly granted to you in this Agreement.
4. Updates. From time to time, Core Performance Concepts may, but has no obligation to, provide updates to the MATERIAL. You are advised to update the MATERIAL regularly. Core Performance Concepts reserves the right to designate any updates, additional content or features as requiring separate payment or purchase of a separate subscription at any time and without notice to you. Nothing in this Agreement entitles you to receive any support, maintenance, updates, upgrades, content or new versions of the MATERIAL, and Core Performance Concepts specifically reserves the right to cease providing, updating, or maintaining the MATERIAL at any time in its sole discretion. If you have entered into a separate maintenance and support or similar agreement with Core Performance Concepts, then Core Performance Concepts will provide MATERIAL maintenance and support in accordance with the terms of that agreement, not this Agreement.
(a) Paid Subscription License Term. If you have purchased a license to the MATERIAL, then the initial term of this Agreement commences on the date specified in the Purchase Receipt or applicable purchasing documentation accompanying the MATERIAL, and continues for the period of time set forth in the Purchase Receipt or applicable purchasing documentation (or, if no such date is specified, for one (1) year). At the end of such initial term (and each renewal term thereafter, if any), subject always to payment of the applicable license fees for each such renewal term, this Agreement will automatically renew for additional successive terms equal to the period of time set forth in the applicable Purchase Receipt or purchasing documentation accompanying the MATERIAL (or, if no such date is specified, for additional successive terms of one (1) year), unless either party provides the other party with notice of nonrenewal at least thirty (30) days prior to the end of the then-current term.
(b) Trial License Term. If you have obtained a trial license to the MATERIAL, then your license will continue for such time period as may be specified by Core Performance Concepts with respect to such trial. In addition, Core Performance Concepts may terminate your trial license at any time at its sole discretion.
(d) Termination Rights. You may terminate the license at any time by destroying all copies of the MATERIAL in your possession or control. The license granted under this Agreement will automatically terminate, with or without notice from Core Performance Concepts, if you breach any term of this Agreement. Without limiting the foregoing, if you fail to pay the applicable license fees as specified in the Purchase Receipt or applicable purchasing documentation, your license to the MATERIAL ends automatically. If you sue anyone over patents that you think may apply to the MATERIAL, your license to the MATERIAL ends automatically. Any patent rights in the MATERIAL granted by this license apply only to the MATERIAL.
(e) Effects of Termination. Termination of this Agreement, other than pursuant to Section 8, does not entitle you to a refund of any pre-paid fees. Sections 3, 5(e), 6, 7, 8 and 11 of this Agreement will survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement, your rights to use the MATERIAL cease.
6. Limited Warranty; Disclaimer. Core Performance Concepts warrants that any physical media manufactured by Core Performance Concepts on which the MATERIAL is distributed will be free from defects for a period of sixty (60) days from the date of delivery of the MATERIAL to you. Your sole and exclusive remedy, and Core Performance Concepts’ sole liability, in the event of a breach of the foregoing warranty will be that Core Performance Concepts will, at its option, replace any defective media returned to Core Performance Concepts within the warranty period or refund the money you paid for the MATERIAL. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6, THE MATERIAL IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. CORE PERFORMANCE CONCEPTS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CORE PERFORMANCE CONCEPTS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Core Performance Concepts does not warrant that the MATERIAL will meet your requirements, that the MATERIAL will operate in the combinations that you may select for Execution, or that all MATERIAL errors will be corrected.
7. Indemnity. Core Performance Concepts will defend or settle any action brought against you to the extent that it is based upon a claim that the MATERIAL, as provided by Core Performance Concepts to you under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against you, provided that you: (a) promptly notify Core Performance Concepts in writing of the claim; (b) grant Core Performance Concepts sole control of the defense and settlement of the claim; and (c) provide Core Performance Concepts, at Core Performance Concepts' expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. If your use of any of the MATERIAL hereunder is, or in Core Performance Concepts' opinion is likely to be, enjoined due to the type of claim specified in this Section, Core Performance Concepts may, at its sole option and expense: (x) procure for you the right to continue using such MATERIAL under the terms of this Agreement; (y) replace or modify such MATERIAL so that it is non-infringing and substantially equivalent in function to the enjoined MATERIAL; or (z) if options (x) and (y) above cannot be accomplished despite Core Performance Concepts' reasonable efforts, then Core Performance Concepts may terminate your rights and Core Performance Concepts' obligations hereunder with respect to such MATERIAL and refund to you the unamortized portion of the license fees paid by you for such MATERIAL, based upon a straight-line five (5) year depreciation commencing as of the date of receipt by you of such MATERIAL. Notwithstanding the terms of this Section, Core Performance Concepts will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (A) modifications to the MATERIAL made by a party other than Core Performance Concepts, if a claim would not have occurred but for such modifications; (B) the combination, operation or use of the MATERIAL with equipment, devices, MATERIAL or data not supplied by Core Performance Concepts, if a claim would not have occurred but for such combination, operation or use; (C) your failure to use updated or modified MATERIAL provided by Core Performance Concepts to avoid a claim; or (D) your use of the MATERIAL other than in accordance with this Agreement or the associated documentation. THE PROVISIONS OF THIS SECTION 7 SET FORTH CORE PERFORMANCE CONCEPTS’ SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8. Limitation of Liability. CORE PERFORMANCE CONCEPTS' TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AMOUNTS PAID TO CORE PERFORMANCE CONCEPTS BY YOU FOR THE MATERIAL. IN NO EVENT WILL CORE PERFORMANCE CONCEPTS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES FOR the cost of procuring substitute products ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE MATERIAL, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CORE PERFORMANCE CONCEPTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. U.S. Government End Users. The MATERIAL is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer MATERIAL” and “commercial computer MATERIAL documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the MATERIAL is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the MATERIAL will be only those specified in this Agreement.
10. Export Law. You agree to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the MATERIAL nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
11. General. For purposes of this Agreement, the terms “purchase,” “sell” and like terms refers to purchase or sale of a license to use the MATERIAL and not to a purchase or sale of title to or ownership of any rights or other interests in the MATERIAL. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You agree that any claims or actions regarding this Agreement may be brought solely in the state of federal courts located in Orange County, California, and you waive any right to challenge jurisdiction and venue therein. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Core Performance Concepts' prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Core Performance Concepts have executed a separate agreement. Any terms or conditions contained in your purchase order or other purchasing document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Core Performance Concepts and will be deemed null.
12. Contact Information. If you have any questions regarding this Agreement, you may contact Core Performance Concepts at firstname.lastname@example.org.