This software end user license agreement (this “EULA”) is an agreement between you (the “Licensee”) and BrightStar Learning Holding B.V. (“Brightstar”) which sets forth the terms of the license granted by Brightstar to the Licensee as to the Software (as defined below). This EULA provides a license to use the Software and contains warranty information and liability disclaimers. Read this EULA carefully before using the Software. By selecting “I agree” you are confirming your acceptance of this license to use the Software and agreeing to become bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not use the Software.
The software is NOT to be used by (a) children under the age of seven, (b) individuals suffering from: epilepsy/cerebral fits, heart arrhythmia (irregular heart rate), severe asthma (“severe” means more than 2 episodes of asthma per week), severe migraines (“severe” means more than 1 migraine episode per week), light sensitivity, color blindness (if the color blue is included) or (c) within 6 hours from the last use of methylphenidate or other psychostimulants (for example, Ritalin, Concerta, Metadate or Methylin).
If the Licensee is the guardian of a minor who will be the actual user of the Software, the Licensee agrees to the terms of this EULA on behalf of himself or herself and on behalf of the minor. Further, the Licensee agrees to cause the minor to fulfill the conditions of this License.
The Software is owned and remains the property of Brightstar or its third party licensors, is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold, solely to the Licensee, for the Permitted Use (as defined herein) and only on the terms and conditions set forth below.
Certain terms of this EULA do not apply to the Software if you are using it as part of a testing or “Beta” program with regard to which you have not paid consideration (a “Beta Program”). Each such term will be indicated below.
The term “Software”, means any software component provided to you by Brightstar and any copies of it, including any enhancements, derivative works, translations, modifications, updates, releases, versions, Third Party Components or other changes to such software programs, Documentation, sample files, extension files, or other tools and utilities which are provided under this EULA. The Software is composed of both a “client” component that is downloaded from a website and runs on your computer (the “Client Component”) and a “server” component that is installed on Brightstar’s servers and that your computer will access through the Internet (the “Server Component”). Any reference to installation of the Software in this EULA and any license related to such installation refer exclusively to the Client Component. No installation or access to the Server Component – other than regulated access using the Client Component – is permitted. The term “Documentation” means any instructions or other materials (including online documentation) provided with the Software or on any website through which you may access it. The term “Third Party Components” means components of the Software, whether in the form of a runtime version or object code, provided by third party vendors to Brightstar for inclusion as an embedded component of the Software object code or utilities.
Grant of License. Subject to the terms herein, Brightstar grants the Licensee a non-exclusive, non-transferable license to the Software solely for the Permitted Use, according to the instructions in the Documentation, and in strict compliance with this EULA. The use of the Software is limited to the durations and the number of sessions that the Software’s internal controls will allow; the License will lose validity after the last of those sessions or three months have passed from the time of first use, whichever occurs first. Further, the Licensee will use the Software only in accordance with the instructions that may appear from time to time on screen or to which the Licensee will be referred.
License Fee. The license is conditional upon payment to Brightstar of the license fees that were paid by credit card, PayPal or similar payment mechanism prior to use of the software (the “License Fee”). If for any reason the payment of the License Fee is invalidated, the license will immediately lapse and the Licensee will not be entitled to use the Software. This paragraph will not apply to use of the Software in the context of a Beta Program
Questionnaires and Tests. The user may be prompted at various times to answer on-screen questionnaires and to take on-screen tests that provide information about the user and allow evaluation of his or her reading and other skills as of the time of the tests. Such questionnaires and tests may be used to provide a baseline and indication of improvement. The license is conditional upon the Licensee’s agreement that the user will complete such questionnaires and tests as and when prompted by the Software.
Permitted Use. The Licensee is permitted hereunder to use all capabilities of the Software subject to the terms and conditions contained herein. Notwithstanding the above, the Licensee may not:
- Use the Software for commercial time-sharing, rental/service bureau use or for treatment of any person other than the user whose name was supplied as the user during the registration process;
- Create a derivative work of the Software;
- Use Third Party Components included in the Software as a separate, stand-alone product.
Modification. Only Brightstar is allowed to alter, maintain, enhance or otherwise modify the Software.
Reverse Engineering. The Licensee will not cause, nor permit either through its direct efforts or through any third party, the disassembly, de-compilation, or reverse engineering of the Software. The Licensee will not attempt to create or permit others to attempt to create, by reverse compiling or disassembling or otherwise, any part of the source code of the Software from the object code or from other information made available to the Licensee. The Licensee will make no attempt to gain access to the object code or the source code of the Client or Server Components.
Material Terms and Conditions. The Licensee specifically agrees that, without affecting the materiality of any other provision of this EULA, each of the terms and conditions of this section are material and that failure of the Licensee to comply with these terms and conditions will constitute sufficient cause for Brightstar to immediately terminate this EULA.
DECLARATION OF DATA OWNERSHIP AND PRIVACY
Data Collection. The Licensee acknowledges and agrees that the Software includes a function which collects certain data resulting from the use of the Software, including information about the user’s behavior, performance and any questionnaires or evaluative tests which the user will answer during the course of registration and use of the Software (“Data”). That function will transmit the Data to Brightstar.
Brightstar Ownership of Data. The Data will be Brightstar’s exclusive property. Brightstar may use the Data for any purpose, publish it and make it available to other researchers, regulatory agencies or others. Brightstar will not be obligated to make any payment of any sort to the Licensee or the user relating to such use or publication.
Non-Release of Identifying Information. Brightstar will not release Data to third parties that contains identifying information that could associate the Licensee or the user with the Data or with the user’s participation in the treatments, unless the Licensee agrees in writing or unless Brightstar is required to do so by law or court order. Brightstar may also disclose Data that contains identifying information to third parties in the following circumstances:
- in the event of a dispute, disagreement or any legal or quasi legal proceeding between the Licensee and Brightstar;
- in the event that Brightstar believes that this may prevent harm to the Licensee, his life, his health or property, and any damage as aforesaid to any third party;
In the event that the activities of Brightstar are transferred to another corporation, Brightstar will be permitted to provide all the information in its possession to the corporation that will acquire Brightstar’s activities, provided that the corporation accepts upon itself the provisions of privacy contained here.
The above reservation of rights by Brightstar will not impose upon Brightstar an obligation to report or provide information to any party, and no person will have any claim or suit against Brightstar flowing from the transfer or provision of information or the non transfer or non provision of the aforesaid information.
TITLE TO SOFTWARE AND PROPRIETY RIGHTS
Ownership of the Software. The Software is proprietary to Brightstar and title to it is and remains vested with Brightstar. All applicable rights to patents, copyrights, trademarks, trade secrets, moral rights and any other intellectual property rights in and to the Software belong to and will remain the sole property of Brightstar. The Licensee acknowledges that the license granted under this EULA: (i) does not provide the Licensee with title to or ownership of the Software and (ii) that the license granted under this EULA provides the Licensee only with a right of limited use under the terms and conditions of this EULA. All rights not expressively granted to the Licensee are reserved and retained by Brightstar.
Trademarks: The Licensee acquires no rights of any sort to any Brightstar trademarks, tradenames, logos or other markings. In no event will the Licensee remove Brightstar’s logos, trademarks, copyright or patent symbol or any other Brightstar or third party proprietary markings or proprietary legends placed upon or contained within the Software or automatically affixed to its output.
Material Terms and Conditions. The Licensee specifically agrees that, without affecting the materiality of any other provision of this EULA, each of the terms and conditions of this section are material and that failure of the Licensee to comply with these terms and conditions will constitute sufficient cause for Brightstar to immediately terminate this EULA and the license granted under this EULA.
THIRD PARTY SOFTWARE COMPONENTS
The Software may include certain software or software components which may have been developed, and the copyright to which may be held, by third parties (“Third Party Software Components”), and which may have been made available to the public according to certain terms and conditions (Third Party Licenses).
Therefore, this EULA will apply to Third Party Software Components only to the extent permitted by the respective Third Party Licenses. In any event of a conflict or contradiction between this EULA and the provisions of a Third Party License, the provisions of the respective Third Party License will prevail over the provisions of this EULA with regard to the respective Third Party Software Component.
USE OF THE SOFTWARE
Use According to Documentation. The Licensee acknowledges that, the Software must be used solely as permitted under this EULA and according to the instructions in the Documentation. Any attempt to use the Software in other ways may result in poor results or side effects.
Minimum Requirements. System requirements detailing the minimum software and hardware requirements for the proper installation and use of the Software are contained in the Documentation. The Licensee warrants and represents that it has met the minimum software and hardware requirements.
Side Effects. The Licensee has been informed that no permanent side effects have been observed with use of the Software in accordance with the instructions in the Documentation, though occasional temporary side effects (including tiredness, anxiety, tearing or dry eyes, perceptual confusion and dizziness/disorientation) have been observed. Brightstar cannot rule out the possibility of permanent side effects even if the Licensee uses the Software in accordance with the instructions in the Documentation. Should any side effects appear, the Licensee undertakes to cease using the Software immediately and to report them to Brightstar.
No Uninterrupted or Error-Free Operation. The Licensee acknowledges and confirms that it is aware that the Software is still undergoing development, de-bugging, integrated testing with relation to other applications, software and other related relevant systems and environment and may cause loss of data or hardware and software conflicts with systems used by the Licensee. Accordingly, Brightstar does not warrant the operation of the Software will be uninterrupted or error-free. The Licensee hereby irrevocably waives any claim for damages due to the use of the Software or due to any defect or malfunction resulting from or connected to the use of the Software, including damages related to or based upon:
- Limited functionality or non-functionality of the Software;
- Non-compatibility with the Licensee’s software or hardware systems or printers/press machines;
- Fitness to any of the Licensee’s needs, operational requirements or particular use;
- Loss of data or business opportunities due to software failures or hardware or software conflicts;
- The Documentation provided by Brightstar.
- Any of the representations made by the Licensee hereinabove.
DISCLAIMER OF WARRANTY
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”. BRIGHTSTAR MAKES NO PROMISES OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE OTHER THAN THE REFUND IN ABSENCE OF MINIMUM IMPROVEMENT MENTIONED ABOVE. OTHER THAN THE SAID REFUND, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
BRIGHTSTAR WILL HAVE NO LIABILITY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT OR COMMERCIAL LOSS OR LOSS OF DATA, OR DAMAGE TO OTHER SOFTWARE OR OTHER COMPUTERS OR COMPUTER MALFUNCTION OR DOWNTIME, IRRESPECTIVE OF THEORY UPON WHICH ANY CLAIM MAY BE BASED, EVEN IF BRIGHTSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT IS CLARIFIED THAT BRIGHTSTAR WILL HAVE NO LIABILITY FOR ANY DAMAGE AS A RESULT OF:
- Misuse or abuse of the Software;
- Service or modification made to the Software by anyone other than Brightstar;
- The Software being installed, implemented and operated other than in accordance with all the instructions in the Documentation;
- The Licensee’s failure properly to install all updates made available with respect to the Software, and updates recommended by Brightstar with respect to Third Party Components or third party software (including operating system software) that materially affect performance of the Software;
- The Licensee’s failure to properly maintain all associate equipment, software and environmental conditions in accordance with applicable specifications; and
The Licensee acknowledges that Brightstar’s Third Party Component licensors make no warranties to the Licensee under this EULA.
The above Disclaimer of Warranty and the Limitation of Liability detailed below will apply to any use by the Licensee of the Brightstar website.
Term. This EULA and the license granted hereunder will commence upon acceptance by the Licensee of this EULA and will continue until terminated by either party in accordance with the provisions contained herein.
Termination by Brightstar. In addition, to the automatic expiry of the License and Brightstar’s termination rights pursuant to the provisions of sections “License”, “Use of the Software” and “Title to Software” above, Brightstar will have the right to terminate this EULA and the license granted herein immediately upon the Licensee’s failure to comply with any of the terms and conditions of this EULA;
Immediate Termination. Without prejudice to any other rights or remedies available hereunder or under any applicable law or treaty, THE LICENSE WILL BE AUTOMATICALLY TERMINATED IF THE LICENSEE TRANSFERS POSSESSION OF ANY COPY, MODIFICATION, OR MODULE OF THE SOFTWARE TO ANY OTHER PARTY OR IF THE LICENSEE MAKES ANY USE OF THE SOFTWARE DIFFERENT FROM THE PERMITTED USE DEFINED IN THIS EULA.
Termination for IP Violations. The foregoing notwithstanding, in the event Brightstar exercises its right to terminate this EULA pursuant to sections “License” and “Title to Software” above, Brightstar will have the right to take immediate action to prevent further use of the Software and the Documentation.
Entire Agreement; Amendment and Waiver. This EULA constitutes the full and entire understanding and agreement between the parties with regard to the subject matters hereof, supersedes all prior courses of dealings, proposals and negotiations between Brightstar and the Licensee and no representations, communications, negotiations or statements not expressed herein will be binding upon Brightstar. Any term of this EULA may be amended and the observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the parties to this EULA.
Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to Brightstar upon any breach or default under this EULA will be deemed a waiver of any other breach or default theretofore or thereafter occurring.
Severability. If any provision of this EULA is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision will be excluded from this EULA and the remainder of this EULA will be interpreted as if such provision were so excluded and will be enforceable in accordance with its terms; provided, however, that in such event this EULA will be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
Successors and Assigns; Assignment. The terms and provisions of this EULA will be binding upon and inure to the benefit of the parties to this EULA and to their respective heirs, successors, assigns and legal representatives, except that the Licensee will not assign, sublicense or otherwise transfer the Software or any rights, duties or obligations under this EULA to any person or entity except as expressly permitted hereunder. A Licensee who is a guardian of a minor users and who acquires a license for the purpose of use by such a minor user may allow such use by such minor user, in accordance with the provisions of this EULA.
Governing Law. This EULA will be construed in accordance with and governed for all purposes by the substantive laws of The Netherlands without regard to principles of conflicts of law. Any conventions regarding the international sale of goods or similar, including, without limitation, the United Nations Convention on Contracts for the International Sale of Goods, will not apply to this EULA.
Jurisdiction. The courts of The Hague, The Netherlands, will have the sole and exclusive jurisdiction over any dispute between the parties hereto, and any claim by the Licensee against Brightstar’s employees, ex-employees, officers, agents, or affiliates. The Licensee hereby submits irrevocably to the jurisdiction of such venue. Notwithstanding the aforesaid, and without derogating from the effect thereof, Brightstar may initiate proceedings against the Licensee in any other court of competent jurisdiction.