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License Agreement for BMGI eCOURSES
This License Agreement (the "Agreement") is between BMGI ("BMGI") and any User (individually and collectively, "You" or "Your") of BMGI's eCourse. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OR CONTINUING TO USE BMGI'S eCOURSE. BY USING ANY PORTION OF BMGI'S eCOURSE, YOU ARE SIGNIFYING YOUR ASSENT TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE OR PURCHASE BMGI'S eCOURSE. The effective date of this Agreement is the date that You first accessed, viewed, or used any portion of BMGI's eCourse. You agree as follows:
1. DEFINITIONS. "eCourse" shall mean the online or eLearning training course that BMGI is making available to You and any related services, including but not limited to any related explanatory written materials; training materials; the course player or any BMGI-owned LMS (but the term excludes any open source LMS or software, like Moodle); quizzes and exams; user guides; audio and visual portions of the eCourse; and modified versions, updates, additions, derivative works, and copies of any portion of the eCourse. “Intellectual Property Rights” means any (i) rights associated with works of authorship, including copyrights, moral rights, neighboring rights, and derivative works, (ii) trademark, service marks, and trade name rights, (iii) trade secret rights, (iv) patents, design rights, and industrial property rights, and (v) all other intellectual property rights (of every kinds and nature however designated) whether arising by operation of law, treaty, contract, license, or otherwise, together with all registrations, renewals, extensions, continuations, divisions and reissues thereof. “User” shall mean any person that accesses or uses any portion of the eCourse.
2. LICENSE. In accordance with the terms herein, BMGI grants to You, and You accept from BMGI, a non-exclusive and non-transferable license (the "License") to use the current object code version of eCourse solely through the BMGI Website. You agree to use and access the eCourse solely for Your own personal educational purposes. You have no implied rights to the License or eCourse.
2.1 RESTRICTIONS ON USE. Except as is otherwise expressly permitted in this Agreement, the use of the eCourse is restricted so no one may do any of the following or aid any one in such endeavor: (a) Sublicense, sell, lease, or rent the eCourse; (b) Decompile, disassemble, reverse engineer or attempt to derive the source code from or structure of the eCourse; (c) Create a derivative work that is based on any portion of the eCourse; (d) Rewrite any portion of the eCourse or use any portion of the eCourse in connection with creating any work that is similar in function, content or appearance to any portion of the eCourse; (e) Remove any proprietary notice from the eCourse; (f) Copy, reproduce, distribute, or in any way duplicate all or any part of the eCourse; (g) export or re-export the eCourse or any portion thereof in violation of the export control laws or regulations of the United States; (h) engage in, facilitate, or further any unlawful conduct; (i) damage, disable, overburden, or impair any BMGI Website (or the networks connected to any BMGI Website) or interfere with anyone else's ability to access or use the eCourse; (j) disrupt, or try to gain unauthorized access to: any computer, hardware, or network related to the eCourse or the BMGI Website; (k) violate BMGI’s “privacy policy” found at www.bmgi.com/privacy; (l) violate BMGI’s “terms of use” found at http://www.bmgi.com/TermsOfUse; and/or (m) Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of the eCourse or any other User’s computer or hardware.
3. NON-TRANSFERABLE. This Agreement and the License may not be transferred, or assigned without the prior written consent of BMGI.
4. TERMINATION. BMGI may terminate this Agreement in the event You commit any breach of this Agreement.
5. TITLE TO eCOURSE. The eCourse, including all Intellectual Property to any portion of it, is owned solely and exclusive by BMGI and its licensors, if any. You agree to secure and protect the eCourse in a manner consistent with the maintenance of BMGI's rights therein. All copies of the eCourse and other programs developed hereunder, including translations, compilations, partial copies with modifications and updated works, are the sole and exclusive property of BMGI (but please note that You are not authorized to make any copies or derivative works or engage in any of the acts set forth in Section 2.1 "Restrictions on Use").
6. WARRANTY DISCLAIMER. BMGI PROVIDES THE eCOURSE AND ANY RELATED SERVICES "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." BMGI DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE BMGI WEBSITE OR THE eCOURSE. BMGI GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO THE eCOURSE AND ANY RELATED SERVICES, THIS AGREEMENT OR ITS SUBJECT MATTER. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS CONTRACT CANNOT CHANGE. BMGI EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY. To the maximum extent permitted by law, BMGI and the Affiliated Parties shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (i) any errors in or omissions from the eCourse or the BMGI Website or any services or products obtainable therefrom, (ii) the unavailability or interruption of the eCourse or any features thereof, (iii) your use of the eCourse and the BMGI Website, (iv) the negligence, gross negligence, or recklessness of BMGI or the Affiliated Parties, and (v) the content contained on the eCourse and/or BMGI Website. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND WITHOUT LIMITING THE FORGOING, IN NO EVENT SHALL BMGI OR THE AFFILAITED PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, REMOTE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH THE eCOURSE, LOSS OF THE USE OF THE eCOURSE, OR COST OF SUBSTITUTE GOODS, FACILITIES, OR SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF BMGI OR THE AFFLIATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. INDEMNIFICATION. You agree to indemnify, defend and hold BMGI, its partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information or works, advertisers, product and service providers, and affiliates (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense related to your violation of this Agreement or use of the BMGI Website.
9. ENTIRE AGREEMENT. This Agreement shall constitute the exclusive terms and conditions with respect to the use and licensing of the eCourse and any related provision of services under this Agreement. This Agreement contains the final, complete and exclusive statement of the agreement between the parties with respect to the transactions contemplated herein and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter herein are merged herein. This Agreement may not be amended, supplemented or modified (or any right or power granted hereunder waived) except by written instrument signed by authorized officers of the parties hereto (or in the case of a waiver, signed by the party to be bound), which instrument makes specific reference to this Agreement. This Agreement does not modify, terminate or replace any signed written agreement that you may have for a license to the eCourse or a similar work unless both parties agree in writing for this Agreement to control.
10. HOW WE MAY CHANGE THE CONTRACT. BMGI may, from time to time, change this Agreement, which shall be applicable from the date that you first accessed or used any portion of the eCourse after the effective date of the amended agreement. You should regularly check this webpage to determine when this Agreement was last modified. This Agreement was last changed on February 1, 2010. Your continued use of the eCourse will be deemed acceptance of and agreement to the new or amended contract.
11. JURISDICTION. Any action at law, suit in equity or other proceeding against any party to this Agreement or any person or entity that access or used the eCourse with respect to any term or provision of this Agreement, in connection with any of the transactions contemplated by this Agreement, and/or in connection with the use of the eCourse shall be brought and maintained in the state or federal courts of Colorado, Denver County, USA, with each such party, user or accessor hereby submitting, to the fullest extent permitted by applicable law, to the exclusive jurisdiction of such courts for the purpose of any such action or proceeding. The foregoing provisions of this subsection shall not be construed to limit the right of any Party hereto to serve any such writ, process or summons in any manner permitted by applicable law. Each party and person covered by this section (such term includes entities) further agrees that a final judgment or order in any such action, suit or proceeding may be enforced against such Party in any other jurisdiction by suit on such judgment or order or in such other manner as may be permitted by applicable law. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH SUCH PERSON NOW OR HEREAFTER MAY HAVE TO THE LYING OF VENUE OF ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT OR MAINTAINED IN EITHER THE FEDERAL DISTRICT COURT, DISTRICT COURT, OR THE STATE COURTS OF DENVER COUNTY, COLORADO. The prevailing party in any litigation arising out of or relating to this Agreement shall be entitled to any award of its reasonable attorneys' fees, expert witness fees, expenses and costs of suit, such fees, expenses and costs to be determined by a court and not a jury. IF YOU ARE A GOVERNMENT ENTITY OR AGENCY OR ANY OTHER TYPE OF SOVEREIGN, INCLUDING BY WAY OF ILLUSTRATION AND NOT LIMITATION A FEDERAL, STATE, OR LOCAL AGENCY, AN AGENCY OF A NON-U.S. GOVERNMENT, OR ANY AGENCY OR ENTITY OWNED OR CONTROLLED BY ANY INDIAN TRIBE, THEN YOU HEREBY AGREE TO WAIVE ANY FORM OF IMMUNITY.
12. GENERAL. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Colorado, U.S.A., without regard to choice of law provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions. Failure or delay on the part of any party to exercise any right, remedy, power or privilege hereunder will not operate as a waiver. Sections 2.1, 3, 5, 6, 7, 8, and 11 shall survive the termination or expiration of this Agreement.