IMPORTANT: CAREFULLY READ THIS AGREEMENT: THIS ALCA SOFTWARE LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN ALCA AND YOU. REGISTERING, LOGGING IN OR ESTABLISHING AN ACCOUNT, YOU HEREBY CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU HEREBY AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND BE LEGALLY BOUND BY ALL OF ITS TERMS AND CONDITIONS, DO NOT USE OR REGISTER, LOGIN OR ESTABLISH AN ACCOUNT TO USE THE SOFTWARE.
This Agreement is made and entered into as of the current date by and between Aurora Learning Community Association, an Oklahoma non-profit corporation, and You (as defined below).
A. ALCA (as defined below) provides technology and resources, at a reasonable cost, to all types of schools, colleges, and universities in an effort to maximize and enhance the learning environment.
B. ALCA has acquired rights to the Software (as defined below) designed, created, and developed by GammaStream (as defined below).
C. ALCA desires to grant to Licensee and Licensee desires to obtain from ALCA a limited, non-exclusive license to use the Software solely in accordance with the terms and conditions set forth in this Agreement.
D. The parties desire to memorialize their agreements as set forth in this Agreement.
TERMS OF AGREEMENT
1.1. "Agreement" means this ALCA Software License Agreement.
1.2. "ALCA" means Aurora Learning Community Association, an Oklahoma non-profit corporation.
1.3. "Arch Platform" is a combination of many individual and integrated software components working together to provide an on-line platform which provides a means for allowing users to establish and maintain on-line learning communities over the internet. The Software provides a complete system of service components, which may include but are not limited to, the following:
(a) Web Site Development Service components which provide the ability for users to create and maintain an on-line web site, including but not limited to, the following:
(1) Scheme Customization - enables users to match community colors and graphics with existing work;
(2) Template Based Web Authoring - provides users a simple, HTML-less point and click web page creation, supporting images, video, sound and flash; and
(3) Hierarchical Site Flow - allows users to mimic the physical or organizational structure of their community
(b) Content Creation and Management Service components which provide the ability for users to create, organize and share various resources such as lessons, forms, rubrics, presentations, documents and procedures; including but not limited to, the following:
(1) Database Based File System - provides users a virtual file system, mapped to a database table allowing for simple indexing, searching and reorganization of learning resources;
(2) Content Builders - allows users to create various resources with the tools provided through the browser interface;
(3) Third Party Created Content Storage - enables the system to store many file types created outside the system; and
(4) Flexible Accessibility - allows users to control access to resources.
(c) Collaboration Service components which provide a set of tools allowing a user to communicate effectively with other users as well as an entire audience, including but not limited to, the following:
(1) Email-Like Messaging - enables users to send email-like messages to each other throughout the system, providing a simple way to communicate without remembering or administering email accounts;
(2) Buddy List Creation - allows users to easily send messages to specific groups of users;
(3) Message Board Based Discussions - allows users to discuss issues with users and visitors by enabling messages to contain images, video, and other resources attached to them;
(4) Calendaring - allows each hierarchical level to contain its own calendar of events but still allowing each user to maintain his or her personal calendar; and
(5) Data Publishing - provides the ability to collect large sets of data and utilize the data by sorting, searching, and basic statistical analysis.
(d) Project Management Service components which allow the management of organizations, user groups, including but not limited to, the following:
(1) Room Builder - provides for the creation of rooms for courses, projects, or other spaces where members come together to accomplish a common set of tasks;
(2) Task Manager - allows users to assign tasks to individuals or groups while tracking the task's status and optional assessment.
(e) Standards Service components which provide a way to import and use different standards for the management of organizations, user groups, including but not limited to, the following:
(1) Standards Publisher - enables the system to import and publish a set of standards on-line which allows users to browse and link directly to resources, tasks, classes and organizations among other areas; and
(2) Standards Integrator - provides a means for attaching specific standards to lessons, rooms, or resources.
1.4. "GammaStream" means GammaStream Technologies, Inc., an Oklahoma corporation.
1.5. "License" means a limited, non-exclusive right to use the Software granted hereunder, but only pursuant to the terms and conditions of this Agreement, without any ownership in or to the Software.
1.6. "Qualified Subscriber" is an individual who will be using the Software for his or her own personal, household, recreational, educational and non-commercial use, if You are an individual. If You are an employer, You must be a non-profit entity which is organized exclusively for religious, educational or charitable purposes; operating exclusively for religious, educational or charitable purposes; and exempt from Federal taxation under the Internal Revenue Code of the United States of America; or a for profit entity satisfactorily providing educational content as determined by ALCA in its sole discretion.
1.7. "Software" means all computer software used in the Arch Platform and all computer software programs provided with this Agreement together with all accompanying documentation, utilities, any and all other interface software, and all upgrades that may be provided by ALCA. Some third party materials included in the Software may be subject to other terms and conditions, which are typically found in a "Read Me" file located near such materials.
1.8. "Third Party(ies)" means any and all persons, partnerships, corporations, limited liability companies, limited liability partnerships, companies or any other associations or organizations except for ALCA and You.
1.9. "You" or "Your" means you and any other individual(s) using the Software and each individual's employer for those individuals using the Software within the scope of your employment, if any.
2. Software License
2.1. Use Certification. You hereby agree and acknowledge that an express condition to ALCA granting You a License to use the Software is that You are and will always continue to be a Qualified Subscriber during the term of the License. You hereby represent, warrant, and certify to ALCA that You are a Qualified Subscriber. If You are not a Qualified Subscriber, then You have no rights to use the Software under this Agreement, and further represent, warrant and certify not to use the Software and to discontinue any existing use of the Software.
2.2. Grant. In consideration of payment of all fees dues under this Agreement, You complying with this Agreement and You performing hereunder, ALCA grants You a limited, non-exclusive right to use the Software, but only according to the terms and conditions of this Agreement. The specific use rights granted to You are as follows depending on the type of License you have acquired:
(a) Individual License. This is a License issued to You as an individual person allowing You to use the Software for Your own personal, household, recreational, educational, and non-commercial use only. The Software shall be maintained on the Arch Platform. You are strictly prohibited from using the Software for any other purpose or for the benefit or on behalf of any Third Party. If You fail at any time to use the Software accordingly, Your rights to use the Software under this Agreement are immediately terminated and You further represent, warrant, and certify that You will not use the Software and will discontinue any existing use of the Software.
(b) Non-Profit Entity License. This is a License issued to You as a non-profit entity such as a public or private school district, church, charity, etc. allowing You to use the Software for religious, educational, or charitable purposes only. The Software shall be maintained on the Arch Platform. You are strictly prohibited from using the Software for any other purpose or for the benefit or on behalf of any Third Party. If You fail at any time to use the Software accordingly, Your rights to use the Software under this Agreement are immediately terminated and You further represent, warrant, and certify that You will not use the Software and will discontinue any existing use of the Software.
(c) Shared Non-Profit Entity License. This is the same as a Non- Profit Entity License but it is shared among a number, to be determined by ALCA in its sole discretion, of small non-profit entities, such as public or private school districts, churches, charities, etc. It allows each of the non-profit entities to use the Software for religious, educational, or charitable purposes only, just as if each of the non-profit entities purchased its own Non-Profit Entity License. The Software shall be maintained on the Arch Platform. Each of You are strictly prohibited from using the Software for any other purpose or for the benefit or on behalf of any Third Party other than the non-profit entities sharing the License. All of the small non-profit entities in a group sharing a Shared Non-Profit Entity License must have subscribed for the License within six months of the first invoice date of those small non-profit entities included in the group. If the group fails to attain the number of small non-profit entities required for the Shared Non- Profit Entity License, as determined by ALCA in its sole discretion, then the subscribing non-profit entities of the group may convert their Shared Non-Profit Entity License to a Non-Profit Entity License paying any additional fees required by ALCA, or may terminate their Shared Non-Profit Entity License without receiving any refund of amounts already paid for the License. If any of You fail at any time to use the Software accordingly, each of Your rights to use the Software under this Agreement are immediately terminated and each You further represent, warrant, and certify that each of You will not use the Software and will discontinue any existing use of the Software.
(d) Self-Server License. This is a License issued to You as a non- profit entity such as a public or private school district, church, charity, etc. allowing You to use the Software for religious, educational, or charitable purposes only. The Software shall be maintained on the Arch Platform. You are strictly prohibited from using the Software for any other purpose or for the benefit or on behalf of any Third Party. If You fail at any time to use the Software accordingly, Your rights to use the Software under this Agreement are immediately terminated and You further represent, warrant, and certify that You will not use the Software and will discontinue any existing use of the Software.
2.3. Use Limitations. Subject to the terms and provisions of this Agreement, including but not limited to section 3 of this Agreement, this Agreement and the License granted hereunder, only gives You the right to use the Software on the Arch Platform.
2.4. Term. The term of the License shall begin on the invoice date for all amounts due under this Agreement and terminate one year after the current date unless sooner terminated according to section 12 of this Agreement.
2.5. Revocable. The License granted hereunder is revocable at any time, with or without cause, in the sole discretion of ALCA by ALCA sending written notice of the revocation to You.
2.6. Non-Exclusive. Your License to use the Software shall be non-exclusive. ALCA, in ALCA's sole discretion, may license or provide the Software to any and all Third Parties, or use the Software for the benefit of Third Parties.
3. Use Restrictions. Without the prior written consent of ALCA, You may not, at any time, either directly or indirectly, and You may not assist or enable any Third Party, either directly or indirectly, to:
3.1. Reverse engineer, decompile, disassemble, or alter in any way the Software;
3.2. Sublicense, sell, lease, rent, dispose of, assign, or otherwise transfer the License or Software to any Third Party;
3.3. Distribute in whole or in part, modify, or create derivatives of the Software or applications created with the Software; or
3.4. Share the Software or the use of the Software with any Third Party or provide access to any Third Party in any way.
4. Title to Software; Copyright; GammaStream Agreement. You hereby acknowledge and agree that the Software is and remains the property of GammaStream, the License only gives You the right to use the Software according to the terms and provisions of this Agreement, and this Agreement does not confer any ownership in the Software to You. GammaStream owns all title and intellectual property rights in and to the Software, the accompanying printed materials, and any copies of the Software. You hereby further acknowledge and agree to be bound as a third party beneficiary by all of the terms and conditions of the Software License Agreement between GammaStream and ALCA dated June 25, 2003 and future amendments thereto, of which ALCA shall provide a copy within 30 days after Your written request for a copy.
5. Payment. Upon execution of this Agreement and on the same day of each year thereafter, You shall pay ALCA an annual total sum in accordance with its standard fee schedule in effect at the time ALCA invoices You for all amounts due. Any support services provided by ALCA or GammaStream shall be billed to You according to the standard fee schedule in effect at the time services are provided.
6. Taxes. In addition to all other amounts payable under this Agreement, You shall promptly pay to ALCA any and all sales and other taxes, federal, state or otherwise, which are levied or imposed because of the License or the transactions contemplated by this Agreement.
7. Support Services. GammaStream shall provide technical consulting and support services as requested by You at GammaStream's standard fee schedule in effect at the time services are provided.
8. Data Content. The Software is designed to allow You and Third Parties having a License to use the Software, to publish and share educational information, materials and content with each other so that there may be a free exchange of educational information and resources among those having a License to use the Software. As a result, You hereby understand and agree as follows:
8.1. ALCA shall have the sole discretion in determining which information, materials and other content gets published and shared using the Software, and You hereby grant ALCA the right to determine if the information, materials and other content provided by You gets published or shared using the Software and to censor the information, materials and other content You provide. ALCA may in its sole discretion, either with or without cause and at any time, restrict You from publishing or sharing information, materials or other content through the Software, or require You to discontinue publishing or sharing information, materials or other content through the Software.
8.2. ALCA has no obligation to review, censor or police any information, material or other content, at any time, either before it is published or shared through the Software, whether by You or other Third Parties, or after it is published or shared through the Software, whether by You or other Third Parties, although ALCA, in ALCA's sole discretion, may choose to do so.
8.3. If ALCA reviews, censors or polices any information, material or content either before or after it has been published or shared using the Software, ALCA is not obligated to further review, censor or police any other information, material or content either published or shared through the Software, or proposed to be published or shared through the Software.
8.4. ALCA, GammaStream, and the Third Party providing the information, materials or content published or shared through the Software do not certify the contents or accuracy, or make any representations or warranties regarding the information, materials, or content provided through the Software. You hereby release ALCA, GammaStream, and the Third Party providing the information, material or content, from any and all liability associated with You relying upon, disseminating, or in any way using the information, materials, or content provided through the Software.
8.5. Any and all information, materials, or content provided by You by using the Software shall be for educational or informational purposes only, as determined by ALCA in ALCA's sole discretion. You further consent and agree that any and all Third Parties having a License to use the Software may use all information, materials, or content provided by You through the Software, for educational or informational purposes only, without any further restriction.
8.6. ALCA reserves the right to terminate your License at any time, with or without cause, in ALCA's sole discretion and for no reason or for any reason, including but not limited to Your use of the Software not complying with the terms and provisions of this Agreement, including but not limited to, the terms and provisions of this section 8.
9. No Warranties. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED ARE MADE WITH RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE. ALCA AND GAMMASTREAM DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DO NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. BOTH ALCA AND GAMMASTREAM EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES. ALTHOUGH ALCA AND GAMMASTREAM, TO THE BEST OF THEIR KNOWLEDGE AND BELIEF, DO NOT BELIEVE THEY HAVE INFRINGED ON ANY THIRD PARTIES’ PROPERTY RIGHTS, COPYRIGHTS OR PATENTS, BOTH ALCA AND GAMMASTREAM DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS AS TO THEIR RIGHTS IN THE SOFTWARE AND EXPRESSLY DISCLAIM ANY AND ALL LIABILITY ASSOCIATED WITH ANY POSSIBLE PROPERTY RIGHT, COPYRIGHT OR PATENT INFRINGEMENT CLAIMED BY THIRD PARTIES. FURTHERMORE, BOTH ALCA AND GAMMASTREAM EXPRESSLY DISCLAIM ANY AND ALL LIABILITY FOR THE CONTENT CONTAINED IN THE SOFTWARE.
10. Release and Hold Harmless.
10.1. You hereby release and hold ALCA and its successors and assigns harmless from any and all liability resulting from any claims, actions, causes of actions, suits, debts, sums of money or any other proceedings, or actions, whether legal or equitable, resulting from this Agreement, the grant of the License hereunder, or Your use of the Software.
10.2. You hereby agree and acknowledge that ALCA, GammaStream, any of their employees or agents, or any Third Party affiliated with them have not provided You with any legal advice regarding this Agreement, the Software or the contents therein.
11. Indemnification. You shall indemnify ALCA and its successors and assigns, from any liability from any claims, actions, causes of actions, suits, debts, sums of money or any other proceedings or actions, whether legal or equitable, resulting from this Agreement, the grant of the License hereunder, or Your use of the Software, including, but not limited to attorney fees, accountant fees, or court costs expended by ALCA in defending any such actions. You shall reimburse ALCA on demand for any payment made by ALCA at any time after the date of this Agreement, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands or actions, in respect of any damages to which the foregoing indemnity relates.
12. Termination. ALCA has the absolute and unconditional right to terminate this Agreement and the License granted hereunder at any time in ALCA's sole discretion either with or without cause, upon sending written notice of the termination to You. Unless specifically waived in writing by ALCA, this Agreement and the License granted hereunder shall automatically and immediately terminate upon the occurrence of any of the following:
12.1. You failing to comply with or to perform when due any term, obligation, covenant, or condition contained in this Agreement;
12.2. Any covenant, representation or warranty contained herein being materially false;
12.3. Any suit, action or other proceeding being filed before any court or governmental agency against You;
12.4. Your dissolution, either voluntarily or involuntarily;
12.5. The appointment of a receiver for any part of Your property; or
12.6. Any proceeding being commenced by or against You under any bankruptcy or insolvency laws.
13.1. Notices. All notices required or permitted herein must be in writing and shall be deemed to have been duly given on the date of service if served personally or by telecopier, telex, e-mail or other similar communication to the party or parties to whom notice is to be given or on the third business day after mailing if mailed to the party or parties to whom notice is to be given by registered or certified mail, return receipt requested, postage prepaid, to You at your last known numbers and address; or to ALCA at the numbers and address set forth below:
Mr. Gary Sacket, President
Aurora Learning Community Association
1000 East Elm Fairview, Oklahoma 73737
Phone: (580) 227-1007
Fax: (580) 227-2642
or to such other numbers or addresses as either party hereto may designate to the other from time to time for this purpose. Any communication which is mailed shall be confirmed immediately by telecopier, but failure to so confirm shall not affect the effectiveness of such notice from and after the date on which such notice is actually received.
13.2. Integrated Agreement. This instrument contains and constitutes the entire agreement between the parties herein and supersedes all prior agreements and understandings between the parties hereto relating to the subject matter hereof. There are no agreements, understandings, restrictions, warranties, or representations among the parties relating to the subject matter hereof other than those set forth herein. All other instruments or documents delivered pursuant to this Agreement are hereby incorporated herein and made a part of this Agreement.
13.3. Construction. This Agreement shall be construed, enforced, and governed in accordance with the laws of the State of Oklahoma. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, or neuter gender thereof or to the plurals of each, as the identity of the person or persons or the context may re-quire. The descriptive headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision contained herein. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, there shall be no presumption or burden of proof which arises favoring or disfavoring any party by virtue of the authorship or any of the provisions of this Agreement.
13.4 Jurisdiction and Venue. The District Court of Major County, State of Oklahoma shall have the exclusive jurisdiction and venue over all disputes, controversies or litigation regarding this Agreement and the enforcement thereof.
13.5. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach of this Agreement, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
13.6. Invalidity. If any provision contained in this Agreement shall for any reason be held to be invalid, illegal, void or unenforceable in any respect, such provision shall be deemed modified so as to constitute a provision conforming as nearly as possible to such invalid, illegal, void or unenforceable provision while still remaining valid and enforceable, and the remaining terms or provisions contained herein shall not be affected thereby.
13.7. Binding Effect. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. This Agreement shall be in full force and effect upon You downloading the Software, You clicking the applicable button to complete the installation process, or You reviewing any of the accompanying documentation.
13.8. Litigation Expense. In any action brought by a party hereto to enforce the obligations of any other party hereto, the prevailing party shall be entitled to collect from the other party to such action such party's reasonable attorneys' fees, court costs and other expenses incidental to such litigation.
13.9. Amendment and Waiver. This Agreement may be amended at any time, but only by an instrument in writing executed by both parties hereto. A party hereto may waive any requirement to be performed by the other party, provided that such waiver shall be in writing, and executed by the party waiving the requirement.
13.10. Time of Essence. Time shall be of the essence with respect to the performance by the parties hereto of their respective obligations hereunder.