NATIONAL LIBRARY OF VIRTUAL MANIPULATIVES
APPLICATION SOFTWARE LICENSE AGREEMENT

PLEASE READ LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE NLVM APPLICATION SOFTWARE. BY CLICKING ON THE “I accept the terms of the License Agreement” BUTTON DURING INSTALLATION, INSTALLER GIVES AUTHORIZED CONSENT OF CUSTOMER TO BE BOUND BY THIS LICENSE AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF LICENSE AGREEMENT, CLICK THE “Cancel” BUTTON TO CANCEL INSTALLATION, AND RETURN THE PRODUCT TO PROVIDING DISTRIBUTOR FOR A FULL REFUND. BY USING OR ACCESSING SOFTWARE ON ANY EQUIPMENT WHERE IT HAS ALREADY BEEN INSTALLED, EACH AND EVERY SOFTWARE USER ALSO CONSENTS TO BE BOUND BY THIS ENTIRE LICENSE AGREEMENT.

PRIMARY DEFINITIONS

NLVM: The National Library of Virtual Manipulatives collection of educational applets and integrated documentation, including its associated design elements, layouts, logos, graphics, text, and programming.

Software: NLVM software and documentation in state in which they are provided to individual or organization in conjunction with entering into this NLVM Software License Agreement.

Related Software: Non-NLVM software and/or documentation specifically designed or customized for use in connection with the NLVM; and/or NLVM software error corrections, updates, upgrades, supplements, editions, and/or versions other than as defined by above “Software” definition.

Software Adaptations: Modified form and/or derivative work of Software.

Software Privileges: Privileges of and relating to installing, accessing, using, duplicating, and transferring ownership of Software and Software Adaptations as granted by authorizing party(ies).

License Agreement: This agreement governing Software Privileges.

License: Authorization granted by Software’s owner to individual or entity obtaining such authorization to exercise Software Privileges in accordance with terms and conditions of corresponding License Agreement.

Note: Definitions of terminology as specified throughout License Agreement shall supersede any other interpretations for the purpose of interpreting License Agreement. If translation of License Agreement text into various languages creates dispute, the English translation shall govern.

PARTIES TO THIS LICENSE AGREEMENT

Customer: Individual or organization obtaining License ownership with corresponding, herein-specified Software Privileges by entering into this License Agreement;

Software User: Each and every user of Software, including Customer’s service providers, partners, employees and clients, who gains access to Software via Customer’s resources;

Licensor: Software’s owner Utah State University (“USU”); and

Distributors: Product distributors who are authorized by USU and have the rights to distribute and sell Licenses for the Software, including

• Providing Distributor: Distributor who initially provides the License to Customer, or such distributor’s successor. The name and address of Providing Distributor will be provided to Customer in conjunction with License acquisition. Correspondence will be forwarded to successor if original Distributor is replaced.

GENERAL STATEMENTS

NLVM Software is protected by copyright and intellectual property laws and treaties. Software is licensed to Customer on a non-exclusive basis, and is not sold to Customer. Licensor retains all ownership, right, title and proprietary interest in Software. Customer’s License authorizes Customer to exercise Software Privileges solely as expressly authorized by and in accordance with the terms and conditions of the corresponding License Agreement. Customer shall also be permitted to authorize Software Users to exercise Customer’s Software Privileges. This License Agreement constitutes the entire agreement between the parties with respect to the licensing of Software and Software Privileges, and supersedes any previous or contemporaneous communications relating to Software.

This License Agreement will govern any Related Software obtained by Customer in the same manner as the Software, unless Related Software is accompanied by a separate license agreement, in which case Related Software will be governed by its own license agreement.

Any third parties whose materials are contained within Software may enforce violations of corresponding third-party licenses.

PERMISSIONS AND RESTRICTIONS

Software Reproduction

License Transfer

License ownership may be transferred only by original Customer and must be permanent. As part of transfer, original Customer must transfer all Software to which License pertains in the same status and form it was originally provided to Customer, and not retain such in any format. Customer must destroy and not transfer all Software copies made by Customer and all Software Adaptations. In completing transfer, transfer recipient shall agree to replace original Customer as the individual or entity defined as “Customer” owning License, and shall be bound by corresponding License Agreement.

Software Modification

License Types

Type of License (Station License, Mobile License, Trial License, or other) that Customer obtains and Licensed Number of Computers affect permissions and restrictions regarding Software Privileges.

Station License

Up to the number of computers specified for License coverage during License acquisition may be designated by Customer as computers on which Software may be installed, accessed and used (“Stations”). All designated Stations must be owned by Customer. Station designation may only be transferred from one computer to another when original Station has any locally installed software removed Station and permanently discontinues use of Software.
Software may additionally be installed on Customer-owned servers provided that non-Station computers are not permitted to access or use Software. Software may be installed in backup location(s) solely to maintain comparable Software Privileges when a designated Station or its server is not operating properly.
Ownership of a Station License may be transferred only in its entirety and only to a single recipient (not divided for use on more than one entity’s computers).

Mobile License

The installable portion of a Mobile License CD’s Software may be installed on an unrestricted number of computers owned by the Customer and/or others, but Customer retains ownership of applicable License and responsibility for Software User’s compliance. Mobile License CD Software requires CD to be in Software User’s CD drive for Software to operate. A Mobile License CD may only be copied to create a backup, and a copy may only be used to permanently replace an original Mobile License CD. The number of computers that may use Software concurrently is restricted to the number of purchased CDs.
Each Mobile License CD has an individual Mobile License. Mobile License CDs do not need to transfer ownership in quantity obtained from Providing Distributor, provided that compensation for the transfer does not exceed the proportionate amount paid to Providing Distributor.

Trial License

Trial License provides to Customer a complimentary License for product evaluation, testing and demonstration purposes. Unless otherwise specified by Providing Distributor, Trial License provides same rights as Station License for one (1) Station. Unless otherwise specified in agreement between Providing Distributor, Trial License expires thirty (30) days from delivery of Software. Each Customer is limited to one (1) Trial License per Software release.

LICENSE DURATION

Customer’s rights under License are perpetual, except as limited by applicable License or other agreement with Providing Distributor, and/or as terminated under the conditions of License Agreement. License will terminate automatically with or without notice from Licensor or Providing Distributor if Customer materially fails to comply with any provision of License Agreement. Within ten (10) days of receipt of any written notice of such termination, Customer must cease use of the Software and return to Providing Distributor any physical materials provided (such as CDs), destroy all Customer-produced copies of physical materials, and uninstall the Software from all computer resources where Software has been installed. Customer agrees to promote conformity with License Agreement at least as strongly as it promotes conformity with similar policies of its own (at all times exercising at least a reasonable degree of effort) by Software Users. Customer acknowledges that unauthorized use, transfer, and/or disclosure of the Software and/or documentation and/or copies thereof will damage the business interests of Licensor and Distributors. If Customer breaches any of its obligations with respect to access to, use of or confidentiality of Software or documentation, Licensor and affected Distributors shall be entitled to equitable relief to protect their interests, including, but not limited to, preliminary and permanent injunctive relief. Customer’s obligations under this paragraph will survive the termination of this License Agreement.

LIMITED WARRANTY

Licensor’s only liability, warranties and remedies shall be solely to Distributors. All liability, warranties and remedies to Customer shall be solely by Providing Distributor.

Providing Distributor represents and warrants to Customer that Software and any media, when properly installed by Customer and used in accordance with System Requirements specified for use, will perform substantially as described in documentation provided by Providing Distributor in conjunction with Customer’s obtainment of such Software, and/or media for a period of thirty (30) days from the earliest date Software was shipped or otherwise made available to Customer. Providing Distributor’s entire liability and Customer’s exclusive remedy shall be, at Providing Distributor's option, either (a) reimbursement to Customer of purchase monies paid, or (b) repair or replacement of the Software and/or media upon return to Providing Distributor of any provided media. For Customer to be eligible for remedy, Providing Distributor must receive written request from Customer within thirty (30) days the earliest date Software was shipped or otherwise made available to Customer.

All of Providing Distributor's obligations with respect to such warranties shall be contingent on Customer's use of the Software in accordance with this License Agreement and in accordance with instructions furnished, via any and all physical materials, Software’s integral documentation, NLVM Internet Edition websites’ contents, and Providing Distributor’s website contents, to Customer by Providing Distributor at the time of Customer’s obtainment of Software. Providing Distributor shall have no warranty obligations with respect to any failures of the Software which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.

LICENSOR DOES NOT AND DISTRIBUTORS DO NOT REPRESENT OR WARRANT THAT ANY ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED TO CUSTOMER RESPECTING THE SOFTWARE, DOCUMENTATION AND ANY SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF LICENSOR AND/OR DISTRIBUTOR(S) HAS/HAVE BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF LICENSOR OR DISTRIBUTOR(S) IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS AS SET FORTH HEREIN.

LIMITATION OF LIABILITY

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH LICENSOR AND DISTRIBUTORS RECEIVE FROM CUSTOMER FOR LICENSES DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY LICENSOR OR DISTRIBUTORS OF THE RISK OF CUSTOMER'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH CUSTOMER'S USE OF SOFTWARE AND DOCUMENTATION. ACCORDINGLY, CUSTOMER AGREES THAT NEITHER LICENSOR NOR PROVIDING DISTRIBUTOR SHALL BE RESPONSIBLE TO CUSTOMER FOR ANY LOSS-OF-PROFIT, AND/OR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF SOFTWARE OR DOCUMENTATION. Customer shall indemnify and hold harmless Licensor and Distributors and their agents, suppliers and employees from and against any and all claims, demands, or causes of action whatsoever. Any provision herein to the contrary notwithstanding, the combined maximum liability of all individuals and entities to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Customer hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to Providing Distributor by Customer for the Software whose license, use, or other employment gives rise to the liability.

CONTROLLING LAW AND SEVERABILITY

The validity, interpretation, construction and performance of this License Agreement shall be governed by the laws of the State of Utah. The Utah state courts of Cache County, Utah (or, if there is exclusive federal jurisdiction, the United States District Court for the District of Utah) shall have exclusive jurisdiction and venue over any dispute arising out of this License Agreement, and Customer hereby consents to the jurisdiction of such courts. This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

Each Software User certifies not to be an individual or entity prohibited from obtaining access to Software by United States federal sanction or other restriction. Customer obtaining License accepts full responsibility for complying with import taxes and laws to which Customer is subject.

If any provision, or portion thereof, of License Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be enforced to the maximum amount permitted towards fulfillment of the parties’ original intention, and the remainder of License Agreement shall remain in full force and effect.

ADDRESSES*

*Note: Addresses listed are current as of License Agreement’s below-noted revision date. If later changed, Addresses listed below will provide information on address changes or forward to replacement addresses.

Utah State University

• Attn: National Library of Virtual Manipulatives, Department of Mathematics and Statistics, Utah State University, 3900 Old Main, Logan, UT 84322-3900, United States of America

Central NLVM Internet Edition website (which provides links to other NLVM Internet Edition websites)

• http://nlvm.usu.edu

MATTI Associates, LLC (“MATTI” and/or “MATTI Math”), an authorized Distributor

• 1794 East 2500 North, P.O. Box 6611, North Logan, UT 84341, United States of America, http://www.mattimath.com

Revised Oct. 30, 2007