TERMS OF USE

These TERMS OF USE have been incorporated into and made a part of the certain Software License Agreement by and between MAXScholar LLC and Customer.

1. License Grant

Subject to the terms and conditions of this Agreement, MaxScholar grants to Customer, and Customer hereby accepts, a personal, non-transferable, non-sub-licenseable, revocable, non-exclusive. Limited right and license to allow Administrative Users and Teacher/Student Users to access and use the specific MaxScholar software identified in the invoice, solely during the period beginning upon the start of the License Term and ending upon the expiration of the term, and solely for the purposes expressly permitted in the Agreement.

2. Administrative Users

MaxScholar will issue the Customer administrator(s) who will supervise the use by teachers and paraprofessionals a specific username and password required to access the administrative part of the software. This administrator(s) will then be permitted to create usernames and passwords for additional customer administrators who will then be permitted to create usernames and passwords for additional customer administrators. Alternatively, the process of creating the usernames and passwords may be performed by the MaxScholar staff and delivered via email to the administrator who will distribute them to the appropriate administrator or teacher for their use.

3. Student / Teacher Users

Administrative users may create usernames and passwords for permitted Teacher/Student Users of the software. Alternatively, the provision of the Teacher/Student usernames and passwords may be provided by the MaxScholar staff and distributed to the lead teacher or administrator of the school or directly to the teachers. Usernames and passwords provided shall not exceed the number of teacher/student users provided in the contract or invoice.

4. Scope of License

A. Permitted Users. Customer and Customer's Administrative Users shall access and use the Software solely for the Customer's internal operations, solely for the benefit of the Customer's permitted Teacher/Student Users and solely for the purpose of administering courses offered by the Customer using the Software to permitted Teacher/Student Users. By way of example: if Customer is a single school, Customer shall use the Software solely for the benefit of students enrolled at that school and such students shall be the sole Teacher/Student Users of the Software; if Customer is a school district,Customer shall use the Software solely for the benefit of the students enrolled in the school district, and such students shall be the sole Teacher/Student Users of the Software; if the Customer is a private (for profit) organization, Customer shall use the Software solely for the benefit of the Teacher/Student Users using MaxScholar, and such clients shall be the sole Teacher/Student Users of the Software. Failure to adhere to the Agreement may result, in addition to all other rights and remedies available to MaxScholar, in additional usage fees.
B. Permitted Access. Customer shall not, and Customer shall ensure that its Administrative Users and Users do not, divulge, sublicense or otherwise transfer to any third party any user names or passwords for the software. Customers shall be solely responsible for the actions and inactions of its Administrative Users and End Users, and for maintaining the integrity, security and confidentiality of the usernames and passwords for the Software. Customers shall advise MaxScholar immediately if any of the usernames or passwords for the Software have been compromised.

5. Restrictions

Except as may be otherwise expressly permitted in another agreement with MaxScholar to which Customer is a party, Customer may not: (i) modify or create any derivative works of the Software, including customization, translation or localization;
(ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
(iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer or make the Software available to any third party;
(iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software;
(v) publish any results of benchmark tests run on the Software to a third party without MaxScholar's prior written consent;
(vi) create software that is substantially similar to the Software; or
(vii) during the Term and for a period of three (3) years thereafter, create any software that competes with the Software.

6. Suspension of Access

In addition to MaxScholar's right to terminate this Agreement, MaxScholar may terminate Customer's access to the Software upon notice to Customer if Customer fails to pay any fees due to MaxScholar on a timely basis or breaches any material provision of this Agreement.

7. Term

The term of this Agreement will begin on the Effective Date identified on the contract or invoice and, unless earlier terminated, terminate upon the expiration of the License Term identified on the Invoice.

8. Termination

a. Termination For Breach. MaxScholar may terminate this Agreement if the Customer violates any material provision of this Agreement and fails to cure that violation within ten (10) days after its receipt of written notice from MaxScholar identifying the violation. b. Effect of Termination. Upon expiration or earlier termination of this Agreement for any reason, all rights granted to the Customer under this Agreement shall immediately terminate, Customer (including all Administrative Users and Users) shall have no further right to access or use the Software and Customer must promptly cease all use of the Software. As soon as commercially reasonable (but in no event more than thirty (30) days following termination), Customer shall return to MaxScholar or destroy, at Customer's expense, all documentation relating to or derived from the Software. c. Survival. Any provisions of the Agreement which by their nature or express terms should survive termination or expiration shall survive termination or expiration including, without limitation, Sections 5, 8, 10, 11, 12 and Sections 14 through 21 of these Terms.

9. Technical Assistance

During the Term, MaxScholar personnel shall be available from 9:00 a.m. to 5:00 p.m. ET to provide the Customer a reasonable amount of technical assistance regarding use of the Software by telephone, email or other web-based communication tools.

10. License Fees

In consideration for the rights and licenses granted to Customer herein, Customer shall pay MaxScholar the fees set forth in the invoice. All fees are in U.S. Dollars and are non-refundable. Unless otherwise provided in the invoice, all fees shall be due and payable within thirty (30) days of the Customer's receipt of an invoice from MaxScholar.

11. Additional Fees

Customers acknowledge and agree that there may be features or additional services (such as Professional Development, MaxScholar Orton-Gillinham Level 1 Certification, and MaxScholar-developed instructional materials) made available by MaxScholar for additional fees. If the Customer chooses to utilize such services or products, Customer agrees to be bound by any additional terms and conditions governing the use of such features or services and to pay all additional fees related to such features or services. These fees may relate to technical support contracts, user orientation training, information back-ups, additional program access or other program enhancements.

12. Proprietary Rights

The Software is the sole property of MaxScholar and its licensors. All right, title and interest in and to the Software and all intellectual property rights therein shall remain exclusively with MaxScholar and its licensors. Customers acknowledge such right, title and interest of MaxScholar and its licensors and will not take any action to jeopardize, limit or interfere in any manner with MaxScholar and its licensors' ownership of or rights with respect to the Software. Customers further acknowledge the Software is protected by copyright and other intellectual property laws and by international treaties.

13. Scheduled Maintenance

MaxScholar will perform routine maintenance on the servers used to run the Software. Such routine maintenance often requires taking the servers and the Software off-line. MaxScholar estimates that it will require at least one hour of server and Software unavailability per month for such routine maintenance. Server and Software unavailability associated with such routine maintenance shall not be included in any server or Software uptime calculations. MaxScholar will use commercially reasonable efforts to perform such routine maintenance during off-peak hours.

14. Disclaimer of Warranty

Except as expressly provided in section 13 above, the software and all data, and content available through the software are provided “as is” and on an “as available” basis, without warranty or condition of any kind, either express or implied, and MaxScholar expressly disclaims all warranties of any kind, including without limitation warranties that the software is free of defects, virus free, able to operate on an uninterrupted basis, merchantable, fit for a particular purpose or non-infringing. The entire risk as to the results achieved with the software is borne by the customer. In addition, the security mechanisms implemented by the software have inherent limitations, and customers must determine that the software sufficiently meets its requirements. This disclaimer of warranty constitutes an essential part of this agreement. No use of the software is authorized hereunder except under this disclaimer.

15. Exclusion of Consequential Damages

Neither MaxScholar, nor its employees, distributors, resellers, directors or agents shall be liable to customer or anyone else for any indirect, incidental, consequential, special, punitive or exemplary damages, including but not limited to lost profits and lost data, in any way arising out of or relating to this agreement, even in the event MaxScholar, its employees, distributors, resellers, directors or agents have been advised as to the possibility of such damages. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, liability shall be limited to the extent permitted by law.

16. Limitation of Liability

The entire collective liability of MaxScholar, its employees, distributors, resellers, directors and agents under any provision of this agreement shall not exceed in the aggregate the sum of the fees customer actually paid to MaxScholar pursuant to this agreement for access to and use of the software in the prior twelve (12) month period. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, MaxScholar's liability shall be limited to the extent permitted by law.

17. User Data

The Software will automatically send information from Administrative Users and Teacher/Student Users back to the servers operating the Software. MaxScholar, and its authorized resellers, sales representatives and agents, may use the non-user identifiable portions of this data, for purposes including improvements to MaxScholar programs, educational research and promotional purposes. The information may include, for example, data relating to the performance of Users within the various programs in the Software, conflicts or errors encountered during the download and install process, and conflicts created during the download and install process based on the hardware configuration encountered. Customers have sole responsibility for maintaining student records and monitoring student, teacher, class and school (in the case of district sales) additions, edits and deletes.

18. Customer Representations

Customer represents and warrants to MaxScholar that Customer has the adequate legal capacity to enter into this Agreement and to use and authorize MaxScholar to use (as contemplated by this Agreement) all data uploaded to the Software by Customer, Administrative Users and Teacher/Student Users. Customer further represents and warrants that Customer will use the Software only for lawful purposes and in accordance with this Agreement, and that Customer will not use the Software to violate any law, regulation or ordinance or any right of MaxScholar including, without limitation, any right of privacy, publicity, copyright, trademark, or other intellectual property right.

19. Injunctive Relief

Customer acknowledges that the Software contains MaxScholar proprietary and confidential information, and that disclosure of such information to any third party or misuse of the Software is both
(i) expressly prohibited and
(ii) will give rise to irreparable injury to MaxScholar, inadequately compensable in damages.
Accordingly, MaxScholar may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.

20. Miscellaneous

(A) This Agreement shall be governed by the laws of the State of Florida, U.S.A., excluding its conflict of law provisions.
(B) Customer expressly agrees that the exclusive jurisdiction and venue for any claim or dispute arising from the use of the Software or this Agreement resides in the federal and state courts located in the State of Florida.
(C) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(D) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the Parties' original intent, and the remaining portions remain in full force and effect.
(E) The controlling language of this Agreement is English.
(F) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
(G) Customer may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Customer's assets to another entity, and any attempted assignment or transfer in violation of this Section 20(g) shall be null and void.
(H) This Agreement shall be binding upon and shall inure to the benefit of the Parties, their successors and permitted assigns.
(I) If any dispute arises under this Agreement, the substantially prevailing Party shall be reimbursed by the other Party for any and all reasonable legal fees and costs associated therewith.
(J) MaxScholar may use Customer's name in any customer reference list or in any press release issued by MaxScholar regarding the licensing of the Software and/or provide Customer's name and the names of the Software licensed by Customer to third parties.

21. Entire Agreement

This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes all prior proposals, discussions, other oral communications, written communications and agreements with respect to such subject matter. This Agreement may be modified only by mutual written agreement of the Parties.