END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT"), SETS FORTH THE TERMS AND CONDITIONS ON WHICH KHAN ACADEMY (“KHAN ACADEMY") AGREES TO PROVIDE THE INDIVIDUAL OR COMPANY EXECUTING THIS AGREEMENT (“LICENSEE") THE SOFTWARE (DEFINED BELOW). THIS AGREEMENT SUPERCEDES ANY OTHER END USER LICENSE AGREEMENT OR OTHER TERMS AND CONDITIONS THAT MAY BE PACKAGED WITH OR OTHERWISE PROVIDED IN CONNECTION WITH THE SOFTWARE.
TO EXECUTE THIS AGREEMENT, YOU MUST CLICK THE “I AGREE" BUTTON OR OTHERWISE EXPRESSLY ASSENT TO THE TERMS OF THIS AGREEMENT. BY DOING SO, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT IN A LEGALLY BINDING MANNER. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK ON THE “I AGREE" BUTTON AND DO NOT ATTEMPT TO DOWNLOAD, ACCESS OR OTHERWISE USE THE SOFTWARE OR ANY OTHER MATERIALS RELATED THERETO.
IF YOU ARE OBTAINING THE SOFTWARE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (A “COMPANY"), YOU REPRESENT TO KHAN ACADEMY THAT YOU ARE DULY AUTHORIZED TO REPRESENT THE COMPANY AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF COMPANY. BY EXECUTING THIS AGREEMENT AS SET FORTH BELOW, A BINDING CONTRACT IS FORMED BETWEEN KHAN ACADEMY AND THE COMPANY AND THE TERM “LICENSEE" AS USED HEREIN SHALL MEAN THE COMPANY.
1.1 “Derivative Work” means any discrete modification to the Software made by Licensee pursuant to this Agreement and any modified, altered, enhanced or adapted version of the Software, or derivative work thereof (as that term is defined under United States copyright law) based on the Software.
1.2 “Khan Academy Content” means the education-related audiovisual content created or owned by Khan Academy.
1.3 “Licensee Personnel” means Licensee’s direct employees and agents that are under a traditional employer-employee arrangement with Licensee, and any contractors engaged by Licensee to perform services on Licensee’s premises for Licensee’s benefit.
1.4 “Open Source Software” means software available under a license that requires as a condition of use, modification, and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software be (a) disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge.
1.5 “Software” shall mean the “Offline Server” software that is made available by Khan Academy to Licensee pursuant to the terms and conditions of this Agreement.
1.6 “Source Code” means those portions of the Software, if any, furnished to Licensee in source code or human readable form.
1.7 “Third Party Software” shall mean those portions of the Software, if any, which are owned or controlled by third parties and licensed to Khan Academy or Licensee, as applicable.
2. LICENSE GRANT; OWNERSHIP
2.1 Development and Hosting Licenses. Subject to the terms and conditions of this Agreement, Khan Academy hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable license (i) to use, modify and create Derivative Works from the Source Code, and to use the resulting object code, without right to sublicense, solely at the Licensee’s principal place of business and solely for the purpose of incorporating the Derivative Works into the Software, and only if in compliance with Section 2.3 below; (ii) to reproduce, display, perform and provide access to, in object code form only, the Software or Derivative Works solely on a hosted basis for internal non-commercial use and solely for purposes of providing access to Khan Academy Content to Licensee Personnel, and only if in compliance with Section 2.4 below.
2.2 Distribution License. Licensee may not distribute the Software to any third parties outside of the Licensee Personnel, and may not permit access to the hosted Software to any non-Licensee Personnel.
2.3 Restriction on Modification. Licensee will not create derivative works of the Software that contain Open Source Software or use the Software or derivative works thereof to merge with, link to, make function calls to, or share data structures with Open Source Software.
2.4 Restriction on Distribution. Except as expressly permitted herein, the Software and any Derivative Works permitted hereunder may be hosted and operated only from servers that are under Licensee’s control and which are not accessible from the public Internet. Except as expressly permitted herein, Licensee shall not distribute, license, permit access to or otherwise make available the Software or Derivative Works to any third party. Licensee may not subcontract any of its rights under this Agreement. Except as expressly permitted herein, Licensee will not authorize or permit any third party other than Licensee Personnel to access or use the Software, and Licensee will not make the Software available on or in any hosted environment that is available through the public Internet. Notwithstanding anything else set forth in this Agreement, Licensee may not distribute the Derivative Works on a standalone basis separate from the Software.
2.5 Proprietary Notices. Licensee shall not remove, efface or obscure any copyright, trademark or other proprietary notices from the Software. Licensee shall include reproductions of all copyright notices found on or in the Software with each copy of the Software and any Derivative Work. Licensee acknowledges that any symbols, trademarks, tradenames, and service marks adopted by Khan Academy to identify the Software belong to Khan Academy or its licensors and that Licensee shall have no rights therein.
2.6 Feedback. Licensee shall promptly provide Khan Academy with a report of any actual or potential error or bug in the Software, by notice or by other reasonable means. If Licensee provides any feedback to Khan Academy concerning the functionality or performance of the Software (including identifying potential bugs, errors, features and improvements) (“Feedback”), Licensee hereby assigns to Khan Academy all right, title, and interest in and to the Feedback, and Khan Academy is free to use the Feedback without payment or restriction.
2.7 No Other Rights Granted. Apart from the license rights expressly set forth in this Agreement, Khan Academy does not grant and Licensee does not receive any ownership right, title or interest nor any security interest or other interest in any intellectual property rights relating to the Software, nor in any copy of any part of the foregoing. Licensee shall not use, license, sell or otherwise distribute the Software or any Derivative Work except as provided in this Agreement, and shall not attempt to, except as legally permissible, reverse engineer, decompile or disassemble any portion of the Software provided in object code form or work around any technical limitation in the Software.
2.8 Ownership. As between Khan Academy and Licensee, Khan Academy or its licensors shall retain all right, title and interest, including all intellectual property rights, in and to the Software and the Derivative Works, and Licensee hereby assigns to Khan Academy all right, title and interest in and to the Derivative Works. Licensee hereby covenants that it will not assert any claim that the Software or Derivative Works infringe or violate any intellectual property right owned or controlled by Licensee.
3. NO WARRANTY AND NO SUPPORT
3.1 No Warranty. THE SOFTWARE IS OFFERED “AS IS,” AND KHAN ACADEMY GRANTS AND LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. KHAN ACADEMY AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR NONINFRINGEMENT CONCERNING THE SOFTWARE OR ANY UPGRADES TO OR DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF THE ABOVE, KHAN ACADEMY GRANTS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY.
3.2 No Support. Nothing in this Agreement shall obligate Khan Academy to provide any support for the Software. Khan Academy may, but shall be under no obligation to, correct any defects in the Software and/or to provide updates or upgrades for the Software to Licensee. Licensee shall make reasonable efforts to promptly report to Khan Academy any defects it finds in the Software, as an aid to creating improved revisions of the Software.
3.3 Third Party Software. Licensee acknowledges that the Third Party Software is not owned by Khan Academy, and may be subject to additional restrictions imposed by its licensor. Licensee agrees that Licensee’s use of any such Third Party Software will be governed additionally by the terms of any license agreement and terms set forth by the licensor of such Third Party Software. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, KHAN ACADEMY OFFERS NO WARRANTIES (WHETHER EXPRESS, STATUTORY OR IMPLIED) OR SUPPORT OF ANY KIND WITH RESPECT TO THE THIRD PARTY SOFTWARE, EXCEPT THAT KHAN ACADEMY WILL PASS THROUGH TO LICENSEE, IF AND TO THE EXTENT PERMITTED, ANY WARRANTIES EXPRESSLY PROVIDED BY SUCH THIRD PARTIES TO KHAN ACADEMY FOR SUCH THIRD PARTY SOFTWARE.
4. TERM AND TERMINATION
4.1 Term and Termination. This Agreement shall become effective on the Effective Date and shall remain in effect for a period of 12 months. The Agreement shall automatically renew for successive 12-month periods thereafter unless either party gives written notice of non-renewal to the other party at least 30 days prior to the end of the then-current term. Khan Academy may immediately terminate this Agreement and the licenses granted hereunder if Licensee defaults in a material obligation under this Agreement and fails to cure such default thirty (30) days after written notice of such default; provided that Khan Academy may immediately terminate this Agreement and licenses granted hereunder without any notice if such default by Licensee is incapable of cure. Licensee may terminate this Agreement at any time upon written notice to Khan Academy and fulfillment of its obligations under Section 4.2 herein.
4.2 Effect of Termination. Upon any termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate. Upon termination, Licensee shall ship to Khan Academy, within thirty (30) days, all tangible items in its possession or control which are proprietary to Khan Academy; and Licensee shall destroy or return to Khan Academy, at Khan Academy's option, all copies of the Software and Derivative Works (including, without limitation, Source Code) in its possession or control.
4.3 Survival. The provisions of Sections 1, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 3, 4.2, 4.3, 5, 6, and 7 shall survive the termination of this Agreement.
5.1 Confidentiality. Licensee acknowledges and agrees that the Software, any documentation relating to the Software, the terms of this Agreement, and any other information (if such other information is identified as confidential or should be reasonably recognized as confidential under the circumstances) provided to Licensee by Khan Academy hereunder (collectively, “Confidential Information”) constitute the confidential and proprietary information of Khan Academy, and that Licensee's protection thereof is an essential condition to Licensee's use and possession of the Software. Licensee shall retain all Confidential Information in strict confidence and not disclose it to any third party or use it in any way except as permitted by this Agreement without Khan Academy's express written consent. Licensee will exercise at least the same amount of diligence in preserving the secrecy of the Confidential Information as it uses in preserving the secrecy of its own most valuable confidential information, but in no event less than reasonable diligence. The prohibitions contained in this Section 5.1 preclude dissemination of Confidential Information to Licensee's subsidiaries, affiliates, contractors or subcontractors, except in the event of a permitted assignment pursuant to Section 7.1. Information shall not be considered Confidential Information if and to the extent that it: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Licensee; (ii) was known to Licensee, without restriction, at the time of disclosure as proven by the files of Licensee in existence at the time of disclosure; or (iii) becomes known to Licensee, without restriction, from a source other than Khan Academy without breach of this Agreement by Licensee and otherwise not in violation of Khan Academy's rights.
5.2 Source Code Protection. Licensee recognizes that the Source Code and all specifications, techniques, manuals, system documentation and other materials relating to the operation of the Software which are disclosed or made available to Licensee by Khan Academy pursuant to this Agreement are confidential, proprietary and trade secret and are protected by law, and shall be treated as confidential information of Khan Academy and afforded the protections set forth in this Section 5. Without limiting the foregoing, Licensee shall not under any circumstances copy, duplicate or otherwise reproduce the Source Code in any manner except as provided herein. Licensee is granted the right to make one (1) archival or backup copy of the Source Code, which shall be marked as an archival copy and as the confidential and proprietary property of Khan Academy to which access is reasonably restricted. Licensee agrees to inform all employees and contractors who are given access by Licensee to the Software, including the Source Code, or any accompanying documentation, that such materials are confidential and trade secrets of Khan Academy licensed to Licensee as such.
5.3 Return of Confidential Information. Notwithstanding the foregoing, all documents and other tangible objects containing or representing Khan Academy Confidential Information and all copies thereof which are in the possession of or under the control of Licensee shall be and remain the property of Khan Academy, and shall be promptly destroyed or returned to Khan Academy upon written request by Khan Academy or upon termination of this Agreement.
6. LIMITATION OF LIABILITY
6.1 EXCEPT FOR A BREACH BY LICENSEE OF SECTION 2 (LICENSE GRANT; OWNERSHIP) OR A BREACH BY EITHER PARTY OF SECTION 5 (CONFIDENTIALITY), IN NO EVENT SHALL LICENSEE, KHAN ACADEMY OR ANY OF KHAN ACADEMY'S LICENSORS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, OR PROCUREMENT OF SUBSTITUTE GOODS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KHAN ACADEMY’S AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMNT EXCEED $1000. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns; provided, however that Licensee may not assign this Agreement or any rights or obligation hereunder, directly or indirectly, by operation of law, change of control or otherwise, without the prior written consent of Khan Academy, and any such attempted assignment in violation of this Section 7.1 shall be void.
7.2 Notices. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by certified mail (return receipt requested), or telecopy, to the other party's legal department at the address provided by each party to the other, or such other address as is provided by notice as set forth herein. Notices shall be deemed effective upon receipt if personally delivered, three (3) business days after it was sent if by certified mail, or one (1) business day after it was sent if by telecopier.
7.3 Governing Law; Venue. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to any conflicts of law principles thereof, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Except as set forth in Section 7.4, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in the County of Santa Clara, California, and both parties hereby consent to such exclusive jurisdiction and venue.
7.4 Arbitration. Except for the right of Khan Academy to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in the County of Santa Clara, California, U.S.A., under the Rules of the International Chamber of Commerce (the “Rules”) by three arbitrators appointed in accordance with the Rules. If there is a conflict between the Rules and the terms of this Agreement, the terms of this Agreement will prevail. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys' fees and costs incurred in connection with any arbitration.
7.5 Severability. All terms and provisions of this Agreement shall, if possible, be construed in a manner which makes them valid, but in the event any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected if the illegal or unenforceable provision does not materially affect the intent of this Agreement. If the illegal or unenforceable provision materially affects the intent of the parties to this Agreement, this Agreement shall become terminated.
7.6 Equitable Relief. Licensee hereby acknowledges that its breach of this Agreement would cause irreparable harm and significant injury to Khan Academy that may be difficult to ascertain and that a remedy at law would be inadequate. Accordingly, Licensee agrees that Khan Academy shall have the right to seek and obtain immediate injunctive relief to enforce obligations under the Agreement in addition to any other rights and remedies it may have.
7.7 Waiver. The waiver of, or failure to enforce, any breach or default hereunder shall not constitute the waiver of any other or subsequent breach or default. No waiver is effective hereunder unless granted in a signed writing.
7.8 Export Restrictions. Licensee acknowledges that the export or re-export of any Software is subject to import and export regulations including the Export Administration Regulations, 15 C.F.R. Parts 730-774. Licensee shall comply strictly with all such United States export controls and shall not export, re-export, transfer or divert any of the Software or any direct product thereof, to any destination, end-use or end-user that is prohibited or restricted under such United States export control laws and regulations, except as specifically authorized by the United States Department of Commerce.
7.9 Relationship of the Parties. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
7.10 Entire Agreement. This Agreement sets forth the entire Agreement between the parties and supersedes any and all prior proposals, agreements and representations between them, whether written or oral. This Agreement may be changed only by mutual agreement of the parties in writing.