END-USER LICENSE AGREEMENT FOR CADMIUM SOFTWARE – SPEAKER READY SYSTEM
This end-user license Agreement (“EULA”) is a legally binding license agreement between the entity or organization you represent, or if you do not designate an entity or an organization in connection with a license purchase, you in your individual capacity (“you” or “your”) and Cadmium LLC, whose address is 19 Newport Drive, Suite 101, Forest Hill, MD 21050 (“Cadmium”) for the Cadmium Software identified above and as further defined in this EULA.
Definitions used in this Speaker Ready System EULA.
“Affiliate” means with respect to a Party, any Person that controls, is controlled by, or is under common control with the Party.
“Authorized Customer End-User” means an End-User that meets all of the following qualifications: (i) is Customer’s Representative or Customer’s client or customer; (ii) is authorized, in accordance with the Agreement, to use a SaaS Service on Customer’s behalf to perform tasks not otherwise available to End-Users; and (iii) has been supplied a password by Customer or by the Customer’s identity management system(s).
“Cadmium Account” means an End-User account consisting of a username, email address, password, and optional phone number, as well as other internal metadata, necessary to authorize and identify an End-User, so that the End-User can use or access some or all of the SaaS Services.
“Cadmium Identity Management System” means a multi-tenant database of Cadmium Accounts included in the SaaS Services and used to authenticate a Person’s identity as an authorized End-User.
“Confidential Information” means information in any form that a Party or a Party’s Affiliate designates as confidential or that, given the circumstances, would reasonably be understood by a reasonable person to be confidential, and that is disclosed by a Party, its Affiliates, or their respective Representatives (the “Discloser”) to the other Party, its Affiliates, or their respective Representatives (the “Recipient”), regardless of the form of disclosure. Confidential Information includes: (i) with respect to Cadmium and its Affiliates, the non-public aspects of the SaaS Services and non-public Documentation; (ii) with respect to Customer and its Affiliates, all Customer Data; and (iii) with respect to each Party, the non-public terms of the Agreement and all non-public information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental, or planned), financial information, forecasts, inventions, know-how, methods, market analysis, pricing, products (whether actual, contemplated, experimental, or planned), prerelease offerings, research and development, security policies and processes, source and object code, and strategies.
“Customer Content” means all data, graphics, text, information, or material that Customer provides to Cadmium in connection with the Customer’s use of Services, including content uploaded through the SaaS Services or provided or made available to Cadmium to upload to or use in connection with the Customer’s use of the SaaS Services and any modifications to that content that Customer or Cadmium makes.
“Customer Data” means (i) all information (other than Aggregate Data or Excluded Data) processed or stored through the SaaS Services by Customer or on Customer’s behalf or (ii) output (such as course completion records) that the SaaS Service generates for the Customer’s or an Authorized Customer End-User’s use. Customer Data does not include payment records, credit cards or other information Customer uses to pay Cadmium, or other information and records related to Customer’s account, including identifying information related to Customer staff involved in payment or other management of Customer’s account.
“Deliverables” means any software or other deliverable created through Professional Services.
"Device" means a computer hardware system (whether physical or virtual) with a storage device or a mobile device capable of running the Software. A hardware partition or blade is considered to be a Device.
“Documentation” means Cadmium’s user guides, training manuals, instructions, usage information, and other similar documentation (as periodically updated or revised by Cadmium) that Cadmium provides to Customer.
“End-User” means a natural person (either as an administrative or non-administrative user) who, through an authorized Cadmium Account furnished through the SaaS Services, uses or has access to all or some of the SaaS Services.
“Feedback” means any suggestion or idea for improving or otherwise modifying any of Cadmium’s products or services.
“Force Majeure Event” means any event or circumstance, whether foreseen or unforeseen, that meets all of the following conditions: (i) prevents a Party, in whole or in part, from performing any of its obligations under the Agreement; (ii) is beyond the reasonable control of the affected Party; and (iii) is not the fault of the affected Party. To further, but not limit, the definition of Force Majeure Event, each of the following events or circumstances is considered a Force Majeure Event: (A) war, flood, lightning, drought, earthquake, fire, volcanic eruption, landslide, hurricane, cyclone, typhoon, tornado, explosion, civil disturbance, act of God or the public enemy, terrorist act, military action, epidemic, pandemic, virus, famine, plague, actions of a court of public authority third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks or cyber attacks as well as (B) strike, work-to-rule action, go-slow or similar labor difficulty, in each case on an industry-wide, region-wide, or nation-wide basis. But the definition of Force Majeure Event does not include changes in market conditions or insufficiency of funds.
"Internal Network" means a private, proprietary network resource accessible only by employees and individual contractors of a specific corporation or other business entity. An Internal Network does not include portions of the internet or any other network community open to the public.
“Loss” means any liability, loss, settlement payment, interest, award, judgment, damages, fines, fees, penalties, filing fees, and court costs, witness fees, reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses, and charges.
“Malicious Code” means any computer code, file, script, agent, or program designed to do harm, including viruses, worms, time bombs, and Trojan horses.
“Party” means each of Cadmium and Customer.
“Person” means any natural person or any business or government entity.
“Representative” means a Party’s director, officer, employee, consultant, advisor, representative, or agent.
“SaaS Service” means any one or more of Cadmium’s hosted software-as –a-service solutions that consist of technology hosted on Cadmium’s (or its third party providers’) computers and accessed remotely, via the Internet.
“Services” means the SaaS Services, Support Services, and Professional Services specified in one or more Order Forms and SOW(s), as applicable.
"Software" means a copy of computer software application identified above and associated optional SaaS Services, and may include "online" or electronic Documentation as well as licensed third party content. The Software does not include source code. The Software is for use and/or runs on Windows operating systems only, and the Software will not be operable on any other systems.
“Support Services” means the maintenance and support services that Cadmium provides to Customer during the Subscription Term for a specified SaaS Service, if and to the extent set forth in the Order Form pertaining to that SaaS Service.
1. Grant of License
2. Scope of Licensed Use
The components of the Software are licensed as a single unit and may not be separated or virtualized and installed on different Devices. The Software may only be used for the internal purposes of the Customer.
2.3 Server use. So long as you comply with the terms and conditions of this EULA, you are licensed to install a copy of the Software on Computer file server(s) within your Internal Network only for use of the Software initiated by an individual from a Device within the same Internal Network as permitted by this EULA. The total number of uses of the Software or accompanying SaaS Service may not exceed the number permitted by the license ordered by you.
By way of example, the foregoing does not permit you to install or access (either directly or through commands, data or instructions) the Software: (i) from or to a Computer or device not part of your Internal Network, (ii) for enabling web hosted workgroups or services available to the public, (iii) by an individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by Cadmium, (iv) as a component of a system, workflow or service accessible by more than the number of users permitted by the license ordered by you, or (v) for operations not initiated by an individual user (e.g., automated server processing).
2.4 Backup Copy. So long as you comply with the terms and conditions of this EULA, you are licensed to make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
2.5 Integrity of 3rd Party Content and Software. Your use of the Software may be affected by digital rights management systems in order to protect the integrity of certain third-party Customer Content and the Software. You may not use any Computer or hardware designed to defeat any copy-protection device, should the Customer Content or Software you have licensed utilize such protection. You may not remove or alter any trademark, trade names, product names, logos, copyright notices, legends, symbols, labels, or watermarking in any third-party Customer Content or the Software, except to the extent as expressly indicated in the third-party Customer Content or Software.
3. Description of Other Rights and Limitations
The license granted to you in this EULA is further conditioned upon your compliance with all of the following conditions:
Limitations on Reverse Engineering, De-compilation, and Disassembly. You may not reverse engineer, decompile, translate, localize or disassemble the Software.
Separation of Components. The Software is licensed as a single product. Its component parts may not be separated for use on more than one Computer. You may not unbundle or repackage the Software for distribution.
No Rental or Other Distribution. You may not rent, license, assign, transfer, time share, host, lend, sublicense, distribute, or lease the Software, or any access code or any licenses associated with the same for any purpose, except as otherwise expressly provided in this EULA.
No Software License Transfers to Third Parties. You may not transfer this license under any circumstances to a third party without Cadmium’s prior written consent and any such approved transferee must agree in writing to be bound by the terms and conditions of this EULA. You may not transfer license on a short term or temporary basis without Cadmium’s prior written consent. However, if you have licensed the Software as a multi-user program (such as a site license) and provided that you comply with all the terms and conditions of this EULA and when required by the Software, you present a valid, authorized, and activated Software key, it is permissible to allow a Customer Device to be substituted or replaced for another Customer Device (for example, a malfunctioning computer with access to the Software may be decommissioned and replaced by providing a new Computer with the software activated and installed) provided you do not exceed the total number of licenses permitted by your order.
No Distribution or Sale of Software Keys. The Software and any copies of the Software keys related to the Software may not be copied, reproduced, distributed, used, posted, modified, adapted, prepare derivatives of or displayed in any form or manner on any online electronic commerce sites or any other site of any kind without the express prior written permission of Cadmium. Any distribution, transfer, or posting made in violation of the requirements, conditions, or restrictions of this section will be void and may result in termination of this EULA.
4. License Compliance
4.1 Cadmium collects information for fraud and misuse of Software including monitoring the number of downloads or installations of the Software through a verification system which may be sent to Cadmium or a third-party from time-to-time for storage or further processing by Cadmium or its vendors that provide license compliance services and support. Information shall include IP address, computer network identifier, and information about the Software license.
4.2 The Software includes technology designed to prevent unauthorized use and copying. If you do not follow the validation, installation, or license management process described in the applicable Documentation, such technology may prevent your use of the Software.
5. Termination
5.1 Cadmium may terminate this EULA if you fail to comply with any of the terms and conditions of this EULA, which includes, but is not limited to, your unauthorized reproduction, copying, distribution, modification, adaptation or the making of a derivative of or display of the Software or any of the Software keys associated with the same. In such event, upon termination you must delete or destroy all copies of the Software and any Software keys associated with the same and all of its component parts and you must provide Cadmium in writing your certification as to the same.
5.2 BY PAYING THE LICENSE FEE FOR THE SOFTWARE WITHOUT REQUESTING A REFUND OF SUCH FEE (IN ACCORDANCE WITH CADMIUM’S RETURN AND CANCELLATION POLICIES AND PROCEDURES AND/OR THE APPLICABLE RETURN AND CANCELLATION POLICIES OF CADMIUM’S AUTHORIZED RESELLERS AND DISTRIBUTORS), OR INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, SUCH ACTS INDICATE YOUR ACCEPTANCE OF THIS EULA AND YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.
6. Intellectual Property Rights
6.1 This EULA is for the licensed use and access to the Software and not an agreement for sale. You acknowledge that irrespective of any use of the word “purchase” or “Reseller” or the like hereunder, no ownership rights are being conveyed to you under this EULA or otherwise and you agree that all rights, title, and interests, including, but not limited to, all copyrights, trade secret rights, patent and trademark rights, whether foreign or domestic, in and to the Software (including, but not limited to, any source or object code, images, photographs, animations, video, audio, music, text, and apps incorporated into the Software), the accompanying printed materials or online documentation, and any copies of the Software, are owned by and shall remain the sole property of Cadmium or its suppliers or licensors.
6.2 THE SOFTWARE IS PROTECTED BY U.S. COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. CADMIUM AND/OR ITS SUPPLIERS OR LICENSORS, ARE AND SHALL REMAIN THE OWNERS OF ALL INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE. THE SOFTWARE IS LICENSED TO YOU ON A NON-EXCLUSIVE, NON-ASSIGNABLE, NON-TRANSFERABLE, LIMITED, PERSONAL BASIS, NOT SOLD.
7. Injunctive Relief
You agree that if you use the Software in any unauthorized manner, or breach the terms and conditions of this EULA, such use or breach may have a devastating and serious impact on Cadmium’s continuing ability to compete profitably and would, therefore, result in immediate and irreparable injury, loss, or damage to Cadmium. The parties agree that in such event, in addition to Cadmium’s right to recover damages for a breach of this EULA, Cadmium shall be entitled to obtain a temporary restraining order or a preliminary injunction from a court of competent jurisdiction, without posting of bond or other security or proof of actual damages, to prevent you, your employees, agents, consultants, or independent contractors from engaging in any further mis-use copying, of the Software or the continued breach of the remaining terms and conditions of this EULA .
8. Limited Warranty
Cadmium warrants that the Software will substantially conform to the applicable Documentation and specifications and will be in good working order following the period assigned in your order contract. This warranty does not apply if the Software: (i) has been altered, except by Cadmium or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Cadmium, or (iii) has been subjected to misuse, negligence, or accident.
EXCEPT AS EXPRESSLY SET FORTH IN THE PARAGRAPH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CADMIUM AND ITS SUPPLIERS, AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. Limitation of Liability
In no event will Cadmium be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software or otherwise, even if Cadmium has been advised of the possibility of such damages: (a) indirect, incidental, exemplary, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or (c) loss of revenue, profits, goodwill or anticipated sales or savings. All liability of Cadmium, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to You, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed the license fees paid by you for the Software that gave rise to the claim. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
10. Disclaimer of Warranty
The Software is provided "as is," with all faults, defects, and errors, and without warranty of any kind. Cadmium disclaims all warranties and conditions, either express, implied, or statutory, including, but not limited to, any (if any) implied warranties, duties, or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software.
11. Survival
The conditions, restrictions and obligations as contained in this EULA which you have voluntarily agreed to shall survive any expiration, termination or cancellation of this EULA, and shall continue and remain in effect to bind you, and your employees, agents, successors, heirs and assigns to the extent necessary to fulfill their essential purposes.
12. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Maryland, United States of America without giving effect to any principles of conflicts of law.
13. Amendments
This EULA may not be amended, altered, or any of its provisions waived on behalf of either party, except in writing executed by both parties' duly authorized agent.
14. Assignability
Except as otherwise expressly provided under this EULA, this EULA and the rights and duties under this EULA may not be assigned by you without the prior written consent of Cadmium.
15. Benefit
Except to the extent forbidden in this EULA, this EULA shall be binding upon and inure to the benefit of the respective successors and assigns of the parties.
16. Severability
If any provision of this EULA becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this EULA shall continue in full force and effect without said provision; provided, however, that no such severability shall be effective if it materially changes the economic benefit of the EULA to the other party.
17. Authority to Accept
You warrant and represent to Cadmium this EULA shall be binding upon you, and that the individual agreeing to be bound under the terms and conditions of this EULA is authorized or has been empowered to do so.
18. Third Party Beneficiary
You acknowledge and agree that Cadmium’s suppliers and licensors (and/or Cadmium if you obtained the Software from any party other than Cadmium) are third party beneficiaries of this EULA, with the right to enforce the obligations set forth herein with regard to the respective technology, applicable software or Content of such suppliers, licensors and/or Cadmium’.
19. Third Party Acknowledgement and Terms
The Software licensed under the terms and conditions of this EULA may use or include third party components, Content, other copyrighted material, and/or open source software which may be subject to certain “open source” or “free software” licenses (“Open Source Software”). Acknowledgments, licensing terms and additional disclaimers for such components, Content, materials, or Open Source Software are contained in the Documentation for the Software. Open Source Software is governed by their respective terms and conditions and nothing in this EULA limits your rights under or grants you rights that supersede the terms and conditions of any such applicable third party terms and conditions for such third party components, Content, materials, and/or Open Source Software.