Please read the following terms, conditions, policies, and notices carefully and in their entirety. This license describes the terms on which Waterford Institute, Inc. ("Waterford") offers you access to an account to use the software. Waterford may, at any time, add, remove, or modify the terms of this license by posting a notice of such changes. Any such changes shall become part of the license. Your continued use of the software constitutes your agreement to all such terms.
INSTALLATION OF THE LICENSED PROGRAMS BY LICENSEE INDICATES THAT LICENSEE HAS READ AND UNDERSTANDS THIS AGREEMENT AND ACCEPTS ITS TERMS AND CONDITIONS. IF THE LICENSED PROGRAMS ARE RUN FROM USB DRIVE RATHER THAN INSTALLED, USE OF THE LICENSED PROGRAMS INDICATES ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
DEFINITIONS
(a) “Licensed Programs” means the computer software in object code format Licensed to Licensee as set forth in the UPSTART (Utah Preparing Students Today for A Rewarding Tomorrow) documentation to which these terms and conditions relate.
(b) “Licensee” means children participating in UPSTART and their parent(s) and/or caregiver(s).
(c) “Licensor” means Waterford Research Institute, LLC.
- UPSTART Product Description
The UPSTART Software is an online service ("Software Service") that allows you to play the Software when you obtain a copy of the Software on USB drive ("USB") which includes software and associated media, printed materials and/or electronic documentation ("Software Products"); or when you obtain an UPSTART approved computer which includes software and associated media, printed materials and/or electronic documentation ("Software Products"). You will not acquire any ownership interest in the digital objects in the Software.
- Account Eligibility
Your User Account is personal to you and may not be transferred, sold, or used by anyone else. The Software and Software Service are available only to individuals eighteen (18) years of age and older and selected as participants of UPSTART. You are liable for all activities conducted through the Account.
- Privacy
You accept and agree to the terms of Waterford’s Privacy Policy, which is hereby incorporated by reference. We cannot ensure that your private communications and other personally identifiable information will not be disclosed to third parties. For example, we may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept our access transmissions or private communications.
Additionally, we can (and you authorize us to) disclose any information about you to private entities, law enforcement, and other government officials as we, in our sole discretion, believe necessary or appropriate to investigate or resolve possible problems or inquires. Furthermore, if you request any technical support, you consent to our remote accessing and review of the computer you load the Software onto for purposes of support and debugging. You agree that we may communicate with you via e-mail and any similar technology for any purpose relating to the Software Service and any other services or software which may in the future be provided by us or on our behalf. You understand that Waterford or its representatives may monitor all communications made by or received by you while using the Software Service. You hereby consent to the extraction of hardware system profile data and any data related to operation of the Software through the Software Service from any computer that logs on to the Software Service using your Account.
LICENSE PROVIDED TO LICENSEE
- Intellectual Property Rights and Grant of License
Subject to the terms of this License, Waterford hereby grants you a non-exclusive limited license (“License”) to use the Software, Software Service, and Software Products solely in connection with using the Software via your authorized Account. Except as provided by this License you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, or create derivative works from any information, software, products, or services obtained from the Software or the Software Services. The Software and any Software Products are made available solely for use by end users according to the terms of this License. Any reproduction or distribution of the Software or Software Products not in accordance with this License is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
You may not modify, reverse engineer, disassemble, or decompile the Software except to the extent that this restriction is expressly prohibited by applicable law. You may not use the intellectual property contained in the Software or the Software Service to create or provide any other means through which others may use the Software, as through server emulators. You may not take any action that imposes an unreasonable or disproportionately large load on Waterford’s infrastructure. Should you do so, your account may be terminated. Neither this License nor your Account entitles you to any subsequent releases of the Software or Software Products. Waterford may update or otherwise enhance the Software, Software Service or Software Products at any time and in doing so incurs no obligation to furnish such updates to you pursuant to this License.
Waterford and its suppliers shall retain ownership of all intellectual property rights relating to or residing in the USB, the Download, the Software, the Software Service, and the Software Products.
- General
This License is governed by the laws of the State of Utah. You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in Salt Lake County, Utah for all disputes arising out of or relating to this License.
(a) Subject to the terms and conditions set forth in this Agreement, Licensor grants Licensee a personal, non-transferable, non-exclusive License to use the Licensed Program solely for instructional/official UPSTART purposes. The License to the Licensed Programs granted by this Agreement shall apply only to the Licensed Programs in their object code version and nothing in this Agreement grants any rights to Licensee to the source code version of the Licensed Software.
(b) The Licensed Programs shall be used only by Licensees (children participating in UPSTART and their parent(s) and/or caregiver(s)).
(c) The Licensed Programs are being licensed for the use of Licensees, including on remote computers owned by Licensee, as set forth in the documentation relating to this Agreement and Licensee shall not move such Licensed Programs to another facility or physical location without the written consent of Licensor which consent will not unreasonably be withheld. Licensee may not, in any manner or for any purpose not expressly granted by this Agreement, copy or distribute the Licensed Programs, or any modified version of the Licensed Programs, including by broadcast or transmission by telephone, cable, satellite, the Internet or interactive television.
(d) The Licensed Programs are protected by trade secret and/or copyright law and are proprietary to Licensor and/or its licensor(s). Licensee must treat the Licensed Programs like any other copyrighted material. Licensee may, however, make one copy of the Licensed Programs for backup and archival purposes only.
(e) Licensee shall have the right to use the Licensed Software in accordance with the licenses granted to the Licensee under this Agreement, but Licensee agrees that Licensor shall retain ownership of the Licensed Programs and except for the licenses granted above, Licensee shall not obtain any right, title or interest in the Licensed Programs.
(f) The License granted to the Licensee under this Agreement shall not be assignable and Licensee shall not have the authority to grant sub licenses to or otherwise transfer, distribute, rent, lease, sell, assign, or otherwise make available or distribute its rights to the Licensed Programs, or any modified version of the Licensed Programs, to any third party. Licensee agrees to remove all versions of the Licensed Programs before selling, transferring, or otherwise disposing of any computer or server on which the Licensed Programs have been installed.
(g) Licensee’s rights with respect to the Software are non-exclusive and are strictly limited to those rights expressly granted by this Agreement. Licensor reserves all rights to the Licensed Programs not expressly granted to the Licensees in this Agreement.
- Technical Difficulties/Software Termination
Waterford does not ensure continuous, error-free, secure, or virus-free operation of the USB, Software, Software Service, Software Products, or your Account. Waterford shall not be liable for any delay or failure to perform resulting from technical difficulties. Further, Waterford cannot and does not promise or ensure that you will be able to access your Account whenever you want, and there may be extended periods of time when you cannot access your Account. Waterford may modify or cancel any element of the Software Service or Software in its sole discretion.
- No Unlawful or Prohibited Use
As a condition of your use of the USB, Software, Software Service, and Software Products you agree you will not use them for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the USB, Software, Software Service or Software Products in any manner that could damage, disable, overburden, or impair any Waterford Web site or service (or the network(s) connected to any Waterford Web site or service) or interfere with any other party’s use and enjoyment of any Waterford Web site or service. You may not attempt to gain unauthorized access to any Waterford Web site or service, other registrations, accounts, computer systems, or networks connected to any Waterford Web site or service, through hacking, password mining, or any other means. You may not cheat or steal or obtain or attempt to obtain any materials or information through any means not intentionally made available through any Waterford Web site or service.
- Termination
This License is effective unless and until terminated by either you or Waterford. You may terminate this License at any time by providing Waterford with written notification. Waterford may terminate this License and deny you access to the Software, the Software Service, and your Account at any time if you (i) breach this License or (ii) if we are unable to verify or authenticate any information you provide to us, or (iii) upon any user activity which is, in our sole discretion, inappropriate and/or in violation of the spirit of the Software or Software Service, or (iv) for violation Waterford’s Privacy Policy. Upon termination of the License by either you or Waterford, you shall immediately discontinue use of the Software, the Software Service, and your Account and shall promptly return the USB and/or UPSTART computer and/or delete all copies of the Download.
- DISCLAIMER OF WARRANTY
THE WARRANTY PROVIDED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED. LICENSOR SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES RELATING TO QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WATERFORD HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USB, THE DOWNLOAD, THE SOFTWARE, THE SOFTWARE SERVICE, THE SOFTWARE PRODUCTS, THE SOFTWARE, THE ACCOUNT, AND ALL OTHER SERVICES INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WATERFORD MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE USB, THE DOWNLOAD, THE SOFTWARE, THE SOFTWARE SERVICE, THE SOFTWARE PRODUCTS, THE SOFTWARE, THE ACCOUNT, AND ALL OTHER SERVICES FOR ANY PURPOSE. THE USB, THE DOWNLOAD, THE SOFTWARE, THE SOFTWARE SERVICE, THE SOFTWARE PRODUCTS, SOFTWARE, THE ACCOUNT, AND ALL OTHER SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
- LIMITATION OF LIABILITY/INDEMNIFICATION
IN NO EVENT SHALL WATERFORD BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER IN AN ACTION FOR CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE USB, THE DOWNLOAD, THE SOFTWARE, THE SOFTWARE SERVICE, THE SOFTWARE PRODUCTS, THE ACCOUNT, AND ALL OTHER SERVICES, PROVISION OF OR FAILURE TO PROVIDE RELATED SERVICES, OR INFORMATION AVAILABLE FROM THE SERVICES. WATERFORD’S LIABILITY TO YOU OR ANY THIRD PARTIES IS LIMITED TO $15. SOME STATES DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY; AS SUCH THEY MAY NOT APPLY TO YOU IN THEIR ENTIRETY. YOU AGREE TO INDEMNIFY AND HOLD WATERFORD, ITS SUBSIDIARIES, AFFILIATES, OFFICERS AND EMPLOYEES HARMLESS FROM ANY CLAIM, DEMAND, OR DAMAGES, INCLUDING REASONABLE ATTORNEY’S FEES, ASSERTED BY ANY THIRD PARTY ARISING IN CONNECTION WITH YOUR USE OF YOUR ACCOUNT, THE SOFTWARE, THE SOFTWARE SERVICE, OR ANY OF THE FORUMS.
- LIMITATION OF LIABILITY AND DAMAGES
THE ENTIRE LIABILITY OF LICENSOR FOR ANY REASON, REGARDLESS OF LEGAL THEORY, IS LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE LICENSING FEE PAID. UNDER NO CIRCUMSTANCES, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), WILL LICENSOR BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCURRED BY LICENSEE OR ANY THIRD PARTY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED UNDER THIS AGREEMENT SHALL FAIL OF ITS ESSENTIAL PURPOSE. THE LICENSING FEE CHARGED IS A CONSIDERATION IN LIMITING LICENSOR’S LIABILITY. THE WARRANTY AND REMEDIES CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE AND NO DEALER, DISTRIBUTOR, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION OR ADDITION TO THEM.
Some state statutes do not allow the exclusion of implied warranties; if any such implied warranties are found to exist, they are limited in duration to the life of the express warranties identified above. Some states do not allow the exclusion or limitation of incidental or consequential damages, nor any limitation on how long implied warranties last, so these limitations may not apply to Licensee. This warranty gives specific legal rights and Licensee may also have other rights which vary from state to state.
- Copyright and Trademark Notices
All contents of the Waterford Web site, the USB, the Download, the Software, the Software Service, the Software Products, and the Software are: Copyright, Waterford Institute, Inc., 55 West 900 South, Salt Lake City, Utah 84101, USA. All rights reserved.
Waterford™, Waterford Institute™, Waterford Institute Learning with the Speed and Energy of Light™, Light Atom logo©, Rusty and Rosy™, Rusty and Rosy logo™, Rusty and Rosy Learn with Me™, Rusty logo™, Rosy logo™, Rusty Head logo™, Rosy Head logo™, Waterford Early Reading Program™, Waterford Early Reading Program logo©, Waterford Early Math and Science™, and Waterford Early Math & Science logo™ are trademarks of Waterford in the United States and abroad.
Any rights not expressly granted herein are reserved to Waterford.
- U.S. Government Restricted Rights and Export Restrictions. U.S. Government Restricted Rights
The USB, the Download, the Software, the Software Service, and the Software are subject to protection under copyright law in the USA and abroad. Copyright claimant:
Waterford Institute, Inc., 55 West 900 South, Salt Lake City, Utah 84101, USA.
You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the USB, the Download, the Software, the Software Service, and the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Parties List or Entity List. By using the USB, the Download, the Software, the Software Service, or the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the USB, the Download, the Software, the Software Service, and the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls.
