DEMONSTRATION END USER LICENSE AGREEMENT
ROSETTA STONE™ AND ROSETTA WORLD™
This End User License Agreement (“License”) is a contract
between you, the individual installing, accessing or commencing the
use of the Rosetta Stone™ and Rosetta World™ products, materials,
and/or services (“Licensee”), and Rosetta Stone Ltd. (“Licensor”),
and governs the use of the Rosetta Stone Product. The License
granted hereunder is conditioned upon Licensee’s acceptance of the
terms set forth herein.
Definitions:
“Software” means language learning software products,
any third party software, online or web-based functionality,
updates or upgrades licensed by Licensor to Licensee pursuant to
this License.
“Rosetta Stone” means Rosetta Stone Ltd. and/or its
subsidiaries Rosetta Stone (UK) Limited and Rosetta Stone Japan
Inc.
“Rosetta Stone Product” means the Rosetta Stone and Rosetta
World language learning products, including, without limitation,
Software, audio tools or audio companion materials,
password-protected access to a Licensor website, and any related
products, materials, services, and documentation (together with any
updates to, or new releases of, the foregoing that are made
available to Licensee by Licensor) licensed by Licensor to Licensee
pursuant to this License.
IMPORTANT NOTICE ON LICENSE-- PLEASE REVIEW
CAREFULLY
If Licensee does not accept the terms of this License,
Licensee must immediately return any media and materials of the
Rosetta Stone Product that Licensee may have received.
1. LICENSE,
INSTALLATION AND USE: If Licensee accepts this
License, and as long as Licensee complies with the terms of this
License, Licensor grants Licensee a non-exclusive and
nontransferable license to use the Rosetta Stone Product in
machine-readable form on any Licensee hard drive or other storage
device for demonstration and evaluation purposes only, subject to
the limitations and restrictions set forth in this License.
Licensor makes no guarantee of access to the Rosetta Stone Product,
and may terminate access without warning.
2. TRANSFER:
Licensee may not sell, rent, lease, loan or sublicense the Rosetta
Stone Product.
3. 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 derive the source code of all or any part of the Software, (b) copy, modify,
translate, alter, change, or collect information that can be used
to create derivative works of all or any part of the Rosetta Stone
Product, (c) download, copy or collect information that could be
used to copy all or any part of the Rosetta Stone Product, or
access or use all or any part of the Rosetta Stone Product for any
purpose other than for the evaluation and demonstration of the
Rosetta Stone Product.
4. OWNERSHIP OF INTELLECTUAL PROPERTY: Licensor reserves all
rights in the Rosetta Stone Product not expressly granted to
Licensee in this License. Licensee acknowledges and
agrees that Licensor or its third-party licensors own all rights,
title and interest in and to the Rosetta Stone Product (including
all software, code, interfaces, text, photographs, graphics,
animation, applets, music, video and audio incorporated therein and
any related user guides and documentation), the trademarks Rosetta
Stone and Rosetta World, the URLs, and other marks related to
Licensor’s products and URLs such as rosettastone.com and
rosettaworld.com and the trade dress, and look and feel of
the Rosetta Stone Product, all of which are covered by various
protections including, without limitation, copyright, trademark,
and trade secrecy law. If Licensee suggests new
features or functionality that Licensor, in its sole discretion,
adopts for the Rosetta Stone Product, such new features or
functionality will be the sole and exclusive property of Licensor
and any and all claims of Licensee as to the same are hereby waived
and released.
Licensor 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 functionality of all or
any part of the Rosetta Stone Product from time to
time.
5. DISCLAIMER
OF WARRANTIES: LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE
OF THE ROSETTA STONE PRODUCT IS AT LICESEE’S SOLE RISK. THE ROSETTA
STONE, PRODUCT AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS
IS”, WITHOUT WARRANTIES OR PROMISES, WHETHER EXPRESS OR IMPLIED, OR
BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE. THE ENTIRE RISK
AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT
OF SUCH ROSETTA STONE PRODUCT (IF ANY) SHALL BE WITH
LICENSEE. THERE IS
NO REPRESENTATION OR WARRANTY HEREIN AGAINST INTERFERENCE WITH
LICENSEE’S ENJOYMENT OR AGAINST INFRINGEMENT. LICENSOR AND ITS THIRD PARTY
LICENSORS DISCLAIM ANY AND ALL OTHER EXPRESS OR IMPLIED
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ROSETTA STONE
PRODUCT, THIRD PARTY SOFTWARE AND ANY SERVICES PROVIDED HEREUNDER,
INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY,
NON-INFRINGEMENT, OR THAT LICENSEE’S USE OF THE ROSETTA STONE
PRODUCT 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.
6. EXCLUSIVE
REMEDIES: ANY LIABILITY OF LICENSOR FOR A DEFECTIVE COPY OF THE
ROSETTA STONE PRODUCT WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF
LICENSEE’S COPY OF THE ROSETTA STONE PRODUCT WITH ANOTHER
COPY.
7. LIMITATIONS OF LIABILITY: IN NO EVENT WILL LICENSOR OR
ITS THIRD PARTY LICENSORS OR ANY OTHER PERSON OR ENTITY BE LIABLE
TO LICENSEE FOR (a) ANY 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 INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES, SO THE FOREGOING LIMITATIONS MAY
NOT APPLY. IF
LICENSEE COULD HAVE AVOIDED DAMAGES BY TAKING REASONABLE CARE,
NEITHER LICENSOR NOR ITS THIRD PARTY LICENSORS WILL BE LIABLE FOR
SUCH LOSSES. IN NO
EVENT SHALL LICENSOR OR ITS THIRD PARTY LICENSORS’ TOTAL LIABILITY
FOR ALL DAMAGES (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE OR
OTHERWISE) EXCEED THE PURCHASE PRICE OF THE ROSETTA STONE
PRODUCT.
8. TERMINATION AND SURVIVAL:
A. This
License is effective until terminated. By installing and running the
program, Licensee
authorizes Rosetta Stone to immediately terminate Licensee’s
rights, without notice, under this License, if Licensee fails to
comply with the terms of this License. Upon termination of this
License, Licensee must immediately cease all use of and destroy all
copies of the Rosetta Stone Product. Licensor may require Licensee
to certify in writing that Licensee has complied with this
requirement.
B. The
provisions of Sections 4, 5, 7, 8, 9, 10, and 11, 12, shall survive
the termination of this License for any reason, but this sentence
shall not imply or create any continued right to use Rosetta Stone
Products after termination of this License.
9. GOVERNING
LAW AND FORUM:
A. This
License will be governed in all respects, by and construed in
accordance with the laws of the Commonwealth of Virginia, United
States, without reference to its principles relating to conflicts
of law. Licensor
and Licensee agree that any action arising out of or related to
this License must be brought exclusively in a United States state
or Federal court in the Commonwealth of Virginia. Licensor and Licensee consent
to the personal jurisdiction of the Commonwealth of Virginia and
acknowledge that venue is proper in any United States state or
Federal court in the Commonwealth of Virginia. Licensee and Licensor each
waive any objection it has or may have in the future with respect
to the foregoing.
B. 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.
C.
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.
10. ENTIRE AGREEMENT, TRANSLATION, ASSIGNMENT:
A. Except as
expressly provided herein, this License constitutes the entire
agreement between the parties with respect to the use of the
Rosetta Stone Product 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
unless in writing and signed by Licensor.
B. In the
event of a dispute between the English and any translated version,
the English version of this License shall prevail.
C. 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
Rosetta Stone Product.
11. SEVERABILITY: 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.
12. EXPORT:
Licensee acknowledges that the Rosetta Stone Products are subject
to U.S. export jurisdiction. Licensee agrees to comply
with all applicable international and national laws that apply to
the Rosetta Stone Product, 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
United States and other governments.
13. 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.
14. WAIVER:
Failure by either Licensee or Licensor 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.