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Terms and Conditions of Use By indicating your acceptance of these Terms and Conditions of Use (this "Agreement") either by clicking on the "I AGREE" button below, by accessing the SCORM Test Track website of Rustici Software, LLC. ("RUSTICI") or by otherwise accessing any SCORM Test Track software provided by RUSTICI (collectively, the "Site"), you ("User") agree in your individual capacity and on behalf of any company you represent that the User has read and agrees to the following terms and conditions: 1. Intellectual Property Ownership. Excluding User Submissions (defined below), RUSTICI is the sole and exclusive owner of all intellectual property rights in and to all aspects of the Site and any information and materials provided through the Site, including, without limitation, any related patents, copyrights, trade secrets, trade names, trademarks, service marks, goodwill, and any other intellectual property rights or intangible assets recognized under any laws or international conventions. RUSTICI may modify, disable, or delete the Site, its functions and/or Site content, including User Submissions, at any time and for any reason without prior notice. 2. User Submissions. The Site may permit the submission, hosting and publishing of certain User provided content (�User Submissions�). User is solely responsible for User's own User Submissions and any resultant consequences of posting User Submissions to the Site. By posting User Submissions to the Site, User hereby grants RUSTICI a worldwide, non-exclusive, royalty free transferable license: (i) to use, review and distribute the User Submissions, including any intellectual property contained therein, unless User provides RUSTICI written notice that it is revoking such license or removes the User Submission from the Site; and (ii) to use any technical aspects of the User Submissions. USER SHALL RETAIN ALL OF USER'S OWNERSHIP INTEREST IN THE USER SUBMISSIONS. 3. Limited License to Use User Materials Provided on the Site. Certain RUSTICI materials may be made available by RUSTICI through the Site. RUSTICI grants User a limited, non-exclusive and non-transferable license to use such materials made available on the Site without any copying, reproduction or creation of derivative works for any purpose and any copyrights, trademarks or service marks embodied therein, only in accordance with RUSTICI's then current service agreement, if applicable, and any other guidelines posted on the Site or within RUSTICI's materials. User acknowledges that any derivative works created from the materials on the Site shall be the sole and exclusive property of RUSTICI. RUSTICI, in its sole discretion, may revoke this license at any time without prior notice to User and without liability. 4. User Passwords. Each User may have a confidential login and password to access the Site in accordance with the terms of this Agreement (a "Login"). User shall maintain the Login in strict confidence and shall not: (i) disclose the Login to any other party; or (ii) allow any other party to access the Site or to obtain any information from the Site by use of the Login. If User's Login is disclosed to any other party, User shall immediately inform RUSTICI of such disclosure. User shall be responsible for all action taken or arising out of a misuse of User's Login. 5. User Conduct. As a condition of use of the Site, User represents and warrants that User shall not use the Site for any purpose that is unlawful or prohibited by this Agreement. User agrees to abide by all applicable local, state, national and international laws, rules and regulations and User shall be solely responsible and liable for all acts or omissions that occur while User or an agent of User accesses the Site. By ways of example, and not as a limitation, User agrees: * Not to transmit or upload any material to the Site that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs; * Not to interfere with or disrupt the Site networks or servers; * Not to attempt to gain unauthorized access to the Site, other accounts, computer systems or networks connected to the Site, through password misuse, mining or any other means; or * Not to interfere with another authorized party's use and enjoyment of the Site. * Not to reverse engineer any aspect of the Site. RUSTICI has no obligation to monitor use of the Site or retain the content of any of the sessions or User Submissions on the Site. However, RUSTICI reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process, governmental request or the business needs of RUSTICI. User shall immediately notify RUSTICI of any breach of this Agreement. 6. User Representations and Warranties. User hereby represents and warrants to RUSTICI that: (i) User has all requisite rights and authority to enter into this Agreement; (ii) User is authorized by RUSTICI to access the Site; (iii) User has acquired all rights necessary to submit and use User Submissions in connection with the Site; and (iv) the User Submissions contains no content with is obscene, false, pornographic, libelous or otherwise contains dangerous or offensive acts. 7. Confidential Information. User may receive the confidential information of RUSTICI, including information that is not publicly available, computer source code and information that is deemed to be a trade secret under applicable law (collectively, "Confidential Information"). User shall protect the Confidential Information of RUSTICI with the same measures it protects its own confidential information, provided however, in no event shall the protection of the Confidential Information be less than reasonable. User agrees to use Confidential Information only for the purposes of fulfilling its agreements with RUSTICI. This obligation of confidentiality shall not extend to any information that: (i) is known by User prior to receiving it from RUSTICI; (ii) is in the public domain or becomes generally known to the public by some action other than breach of an Agreement; or (iii) is received from a third party without an obligation of confidentiality. User's obligations under this Section 7 shall extend for a period of five (5) years from termination, expiration or cancellation of User's access or use of the Site, whichever is later in time, except to the extent applicable trade secret law permits such obligation to continue. 8. Links to Third Party Web Sites. RUSTICI may provide hyperlinks to third party Web sites as a convenience to Users of the Site. RUSTICI does not control third party Web sites and is not responsible for the contents of any linked-to, third party Web sites or any hyperlink in a linked-to site or the content or use thereof. 9. Indemnification. User shall indemnify, defend and hold RUSTICI and its affiliates, officers, directors, employees, shareholders, members or agents harmless from all damages, liabilities and expenses (and all legal costs including attorneys' fees, court costs, expenses and settlements resulting from any action or claim) arising out of, connected with or resulting from any violation of this Agreement by User or User's use of the Site or information provided by the Site or arising out of any User Submissions to the Site. 10. Disclaimer. THE SITE AND ALL SITE INFORMATION CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, RUSTICI DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTIES' RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. RUSTICI MAKES NO WARRANTIES WITH REGARD TO THE ACCURACY, RELIABILITY, ACCESSIBILITY, COMPLETENESS, OR TIMELINESS OF ANY INFORMATION SUPPLIED. RUSTICI DOES NOT WARRANT THAT THE SITE WILL BE OPERATIONAL, SECURE, ERROR-FREE OR VIRUS FREE OR THAT THE USER SUBMISSIONS WILL NOT BE LOST. USER USES THE SITE AND ALL SITE INFORMATION AT USER'S OWN RISK. 11. Limitation of Liability. IN NO EVENT SHALL RUSTICI OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, RESULTING FROM THE USE OR INABILITY TO USE THE SITE OR FOR INFORMATION CONTAINED THEREIN, WHETHER SUCH LIABILITY IS BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF RUSTICI, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS AND AGENTS, UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED IN THE AGGREGATE THE LESSER OF ONE THOUSAND ($1,000.00) DOLLARS OR ANY AMOUNTS PAID BY USER TO ACCESS THE SITE. 12. Equitable Relief. User agrees that any violation or threat of violation of this Agreement relating to the intellectual property rights of RUSTICI, the Login, or the confidentiality obligations of User hereunder may result in irreparable harm to RUSTICI, for which damages would be an inadequate remedy. Therefore, in addition to any rights and remedies otherwise available at law, RUSTICI shall be entitled to equitable relief, without being required to post any bond or other security, and to such other and further equitable relief as may be deemed proper under the circumstances. All remedies for any default or breach of this Agreement whether at law, in equity, or otherwise shall be non-exclusive unless expressly stated otherwise, and RUSTICI shall be entitled to recover attorneys' fees and costs in any action or on User's default. 13. Parties. User and RUSTICI are independent entities acting for their own account and neither party is the partner, joint venturer or agent of the other. User represents that User is greater than 18 years of age. 14. Assignment. User may not assign its rights or obligations under this Agreement, in whole or in part, without the prior written consent of an officer of RUSTICI, regardless of whether the assignment is by operation of law or otherwise. Subject to the foregoing restriction, any assigned agreements will be binding on, inure to the benefit of and be enforceable against the applicable parties and their respective successors and assigns. 15. Force Majeure. RUSTICI shall not be liable for delay or failure in any of its performance hereunder or a failure of the Site due to causes beyond its reasonable control, including, but not limited to, an act of God, war, terrorism, natural disaster, governmental regulations, communication or utility failures or casualties or the failures or acts of third parties. 16. Jurisdiction and Governing Law. This Agreement shall be construed, governed and enforced under the laws of the United States and the State of Tennessee (without regard to rules governing conflict of laws). User agrees that venue for all actions, relating in any manner to this Agreement, shall be in a federal or state court of competent jurisdiction located in Davidson, County, Tennessee. Each party hereby consents and submits to the in personam jurisdiction of such courts, and to the extent permitted by law, hereby consents that all services of process may be made by any nationally recognized overnight courier, or by certified or registered mail, postage prepaid and return receipt requested. Each party waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above. Each party agrees that a final judgment in any such action shall be conclusive and may be enforced in any other jurisdiction in any manner provided by law. 17. Publicity and Research. User consents to RUSTICI disclosing publicly that User has used the Site. In the event User objects to such disclosure, User shall notify RUSTICI promptly in writing and no additional disclosures shall be made. In addition, User's use of the Site and the User Submission may be used as part of a research study in which User's personally identifiable information may or may not be disclosed for such research purposes in the sole discretion of RUSTICI. User shall provide RUSTICI prior written notice if User whishes to opt-out of such research disclosures. 18. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. 19. Waiver. No waiver of any breach of a provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof and no waiver shall be effective unless made in writing. 20. Modifications. RUSTICI may modify this Agreement at any time, at its discretion, and modifications are effective upon being posted on the Site. User is responsible for reviewing this Agreement to ensure that User is aware of any changes made to the Agreement. 21. Electronic Agreement and Counterparts. This Agreement may be executed by electronic means and/or in counterparts, and each such electronic agreement and/or counterpart shall be an original and shall constitute but one and the same document. User may print a paper copy of this Agreement to retain for User's records. All User inquiries related to the Site or this Agreement should be directed to [Mike Rustici 615.376.9867]. 22. From time to time RUSTICI may contact you via email with information about SCORM Test Track or other relevant information. RUSTICI will never sell or disclose your contact information to any third party. Ver. January 2007
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