BY USING TURNING TECHNOLOGIES’ SERVICES AND/OR SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT (HERINAFTER “LICENSE AGREEMENT” OR “EULA”), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND UNCONDITIONALLY BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
1. Introduction and Definitions
As a condition of use, User agrees not to use the Turning Services or Software for any purpose that is prohibited by this License Agreement or by applicable law.
The following terms apply to this License Agreement:
2. Grant of License for Users
Subject to this Agreement, for so long as User maintains a valid license, Turning grants to User a limited, non-exclusive, non-transferable, revocable license to access via the Internet, the Services as hosted by Turning, and/or (b) (if applicable) a limited, personal, non-exclusive, non-transferable, revocable license to use the Turning Software provided to User by Turning. The authorized purchase of Turning’s ExamView and/or WorkSpace entitles the User to an indefinite or perpetual, personal, non-exclusive, non-transferable, revocable license to use ExamView and/or WorkSpace.
If a User’s authorization to use the Turning Services and/or Software ceases for any reason (e.g., termination of employment or termination of the User’s studies at the educational institution that a User attends), then such Authorized User’s authority to use the Turning Services and/or Software shall cease, including, without limitation, any use of the Services and/or Software provided by Turning and User shall permanently delete all copies of the Turning Software and User shall no longer access the Turning Services.
Turning makes no guarantee that User will be able to access any Services at any given time nor that it will perpetually support Services associated with perpetual licenses, and except as otherwise specifically provided herein, Turning will not be liable to User, for failure of accessibility to the Services.
Exhibit A of this License Agreement includes the permitted uses of ExamView. To the extent there is any discrepancy, between this EULA and Exhibit A, then, in that case, the terms of Exhibit A shall control.
3. License Fees and Activation
ACTIVATION OF THE SOFTWARE, SERVICES AND ANY UPDATES MAY BE REQUIRED. USER AGREES THAT COMPLIANCE WITH ANY REQUIRED ACTIVATION IS A CONDITION FOR USER’S LICENSE UNDER THIS LICENSE AGREEMENT BEING EFFECTIVE. USER FURTHER AGREES THAT USER WILL MAKE EVERY REASONABLE EFFORT TO USE THE MOST RECENT VERSION OF THE SOFTWARE FOR WHICH USER IS LICENSED.
User shall not use any Activation Code other than an Activation Code or Codes delivered by Turning to User in accordance with the agreement between Turning and User for activating the Software licensed hereunder. Unless otherwise provided pursuant to a Turning Technologies Services Agreement, User shall register with Turning as an end user of the Software as instructed during the course of the installation of the Software or otherwise.
4. Ownership; Copyrights; Trade Secrets
User has no ownership rights in the Services or the Software provided by Turning. The Services and Software (and all related documentation) is protected by worldwide intellectual property laws, including, without limitation, United States copyright and trade secret laws, and by international treaty provisions. All rights not granted to User herein are expressly reserved by Turning. User shall not remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Services or the Software.
User shall guard the confidentiality of User’s login information and shall not share, nor permit anyone else to use, User’s login information.
User is responsible for all activities that occur under User’s Account. User agrees to notify Turning immediately of any unauthorized use of User’s password or any other breach of security. User agrees not to create or access an Account using a false identity or any false information, or on behalf of someone other than User. User agrees not have more than one Account at any given time. User agrees not to create an Account or use the Services or Software if User has been previously banned from any of the Services or Software.
User shall not copy, use, or exploit the Services and Software other than as permitted by this License Agreement. User shall not modify, change, alter, translate, create derivative works from, produce a source listing, decompile, disassemble, or otherwise reverse engineer the Services or the Software, or attempt to do the same or assist another in doing the same. User shall not interfere, or attempt to interfere, with the Services in any way. User shall not engage in any fraudulent, illegal or unauthorized use of the Services or the Software. User shall not introduce into, or transmit through, the Services or Software any virus, worm, trap door, back door, timer, clock, counter or other harmful or limiting routine, instruction or design. User shall not violate, or attempt to violate, any security features of the Turning Services or Software.
Without the prior written consent of Turning, User shall not copy, distribute, sublicense, transfer, re-sell, rent, lease, lend, permit third-party access to, sublicense or otherwise transfer rights or assign the Services or Software (in whole or in part), to any third-party.
User shall not use, or permit any third-party to use, the Turning Software or Services for the purpose of developing, selling, distributing, or sublicensing any Services or Software that competes with the Turning Services or Software.
6. Information We Collect, Monitor, and Track through the Software
To facilitate troubleshooting and improving functionality, Turning has incorporated analytics in the Services and Software that enable collection and use of certain technical and related non-personal information. Turning may collect “crash reports” from User’s computer or device should the software be interrupted so Turning can ascertain the cause of the interruption or crash and provide appropriate resolution. User agrees that Turning may use this non-personal information provided it is in a form that does not personally identify User.
User acknowledges that certain limited personal information will be shared with Turning in conjunction with the use of the Services and Software. Personal information is generally used to associate User with User’s license. Any personal information collected will be protected with commercially reasonable security protocols.
7. Warranties and Disclaimers
TURNING WARRANTS THAT THE SERVICES AND SOFTWARE WILL FUNCTION, IN EACH CASE, SUBSTANTIALLY IN ACCORDANCE WITH ANY DOCUMENTATION ASSOCIATED WITH THE PROVIDED SERVICES AND SOFTWARE. OTHER THAN THE FOREGOING, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TURNING DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TURNING DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND/OR SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS USER MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO USER.
IN NO EVENT WILL TURNING BE LIABLE TO USER OR ANY THIRD-PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF TURNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TURNING’S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SERVICES OR SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY, OR ON BEHALF OF, USER TO TURNING OVER THE PAST TWELVE (12) MONTH PERIOD FOR THE SERVICES OR THE VALUE OF ANY HARDWARE PURCHASED FROM TURNING AND USED BY USER IN CONNECTION WITH THE SERVICES AND THE SOFTWARE. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO USER.
TURNING ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, WITHOUT LIMITATION, CONTENT POSTED BY, OR ON BEHALF OF, USER AND OTHER USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. TURNING ASSUMES NO RESPONSIBILITY FOR CONTENT POSTED BY, OR ON BEHALF OF, USER OR ANY USER THAT VIOLATES THE RIGHTS OF OTHERS, ALL OF WHICH IS EXPRESSLY PROHIBITED BY THESE TERMS. SUCH PROHIBITED CONTENT INCLUDES CONTENT THAT VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, OR THAT DEFAMES OTHERS.
TURNING ASSUMES NO LIABILITY FOR CONDUCT OF THIRD-PARTIES OR OTHER USERS. BY USING THE SERVICES OR ANY SOFTWARE, USER ACKNOWLEDGES AND AGREES THAT TURNING IS NOT LIABLE FOR SUCH CONDUCT OR ACTIVITIES, AND USER AGREES NOT TO SEEK TO HOLD TURNING LIABLE FOR THE CONDUCT OF THIRD-PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF DAMAGES FROM SUCH THIRD-PARTIES RESTS ENTIRELY WITH USER. USER IS SOLELY RESPONSIBLE FOR ALL OF USER’S COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF TURNING SERVICES OR SOFTWARE. USER UNDERSTANDS THAT TURNING DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE TURNING SERVICES OR SOFTWARE.
8. Export Restrictions
USER SHALL NOT EXPORT, OR CAUSE TO BE EXPORTED, THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE AND DOCUMENTATION WITHOUT THE PRIOR WRITTEN CONSENT OF TURNING.
9. Compliance with Applicable Law
User agrees not to use Turning products for any purposes prohibited by United States law or the laws applicable in the country in which User uses the Services or Software, as applicable. User further acknowledges and affirmatively agrees that User has the responsibility to obtain any and all necessary licenses to export, re-export, or import Turning products and/or Software.
This License Agreement shall remain in effect until it is terminated. User may terminate this License Agreement at any time by destroying or returning to Turning all copies of the Software and Documentation in User’s possession or under User’s control. Turning may terminate this License Agreement, and all related licenses granted hereunder to access the Services and Software, at any time for any reason, including, but not limited to, User’s violation of any of these Terms or any other agreement with Turning. Upon notification of termination, User agrees to destroy or return to Turning all copies of the Software (and related documentation, if applicable) and to certify in writing that all known copies, including backup copies, have been destroyed. Termination by Turning of partial Services/Software will include removal of access to such Services and Software and barring further use of such Services and Software. Termination of all Services and Software will likely include deletion of User’s password and all related information, files and content associated with or inside User’s Account (or any part thereof), including content posted by User. Upon termination of any portion of the Services and Software, User’s right to use such Services and Software will terminate immediately. Turning will not have any liability whatsoever to User for any suspension or termination, including for deletion of content posted by User. All provisions relating to confidentiality, proprietary and intellectual property rights, and non-disclosure shall survive the termination of this License Agreement.
THIS SECTION SETS FORTH USER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION RELATING TO THE SOFTWARE.
To the extent permitted by law, or agreed to in writing, in advance, User agrees to indemnify, defend, and hold Turning, and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors, harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) User’s improper use of the Turning Services and Software; (b) User’s violation of these Terms; (c) User’s violation of any rights of another party, including any other User; and/or (d) User’s violation of any applicable laws, rules or regulations. Turning reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will fully cooperate with Turning in asserting any available defenses. User agrees that the provisions in this section will survive any termination of User’s Account, these Terms, or User’s access to the Turning Services and Software.
Turning will defend or settle, at its option and expense, any action brought against User alleging that the Services or Turning Software infringes or misappropriates any third-party intellectual property rights. Turning will pay any costs incurred by User that are attributable to the infringement action. User understands and agrees that as conditions to Turning’s obligations under this section User must (a) notify Turning promptly in writing of the action; (b) provide to Turning all reasonable information and assistance to defend or settle the action; and (c) grant Turning sole authority and control of the defense or settlement of the action. If an infringement claim is made, Turning may, at its option and expense (i) replace or modify Software so that it becomes non-infringing; (ii) procure for User the right to continue using Software; or (iii) require the return of the Software and refund to User any License Fees paid, less a reasonable amount for use. Turning has no liability to User if the infringement claim is based upon the combination of the Services and Software with any product not furnished by Turning or modification of the Services and Software other than by Turning.
User acknowledges that User’s failure to comply with any of the provisions of this License Agreement relating to confidentiality, proprietary and intellectual property rights, and non-disclosure will irreparably harm Turning and its affiliates, and that Turning and its affiliates will not have an adequate remedy at law. Therefore, User acknowledges and agrees that Turning and its affiliates will be entitled to injunctive relief in addition to any and all other remedies it may have, at law or in equity.
13. Governing Law; Jurisdiction
This License Agreement shall be governed by the laws of the State of Ohio, without giving effect to principles of conflict of laws. Any dispute between the parties connected with this Agreement shall be submitted to the sole jurisdiction of the courts of the State of Ohio, County of Mahoning, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Ohio. Each of the party’s consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.
This License Agreement (and, if applicable, the Turning Technologies Services Agreement) contains the complete agreement between Turning and User with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. User agrees that any varying or additional terms contained in any purchase order or other written document issued by, or on behalf of, User (whether issued by User or Turning) in relation to the Software shall be of no effect (with the exception of the Turning Technologies Services Agreement, if applicable). The failure or delay of Turning to exercise any of its rights under this License Agreement shall not be deemed a waiver of those rights. If any provision of this License Agreement shall be held by a court of competent jurisdiction to be contrary to applicable law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this License Agreement will remain in full force and effect. In the event and to the extent that any part or provision of this License Agreement is invalid or unenforceable in any particular state or jurisdiction, such part or provision shall be interpreted both to be valid and enforceable and to conform to the greatest extent possible to the intent and purpose of such part or provision as set forth in this License Agreement.
Turning may amend this License Agreement from time to time. If we make material changes to this License Agreement, we may notify User by posting the change(s) on Turning’s website (https://www.turningtechnologies.com/termsofuse), or in the Software, or by sending User an email at User’s primary email address as specified in User’s Account. Any changes to this License Agreement will be effective immediately for new users of our Application; otherwise such changes will be effective upon the earlier of fourteen (14) calendar days following our dispatch of a notice to User or fourteen (14) calendar days following our posting of a notice on the Services whichever is earlier. User is responsible at all times for updating User’s Account to provide to Turning with User’s most current email address. If the last email address that User has provided to Turning is not valid, or for any reason is not capable of delivering the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes. Continued use of our Services and Software following notice of such changes will indicate User’s acknowledgement of, and User’s agreement to be bound by, such changes.
If User has questions regarding this License Agreement, wants to address any copyright issues, or wishes to obtain additional information, please send an e-mail to email@example.com or write to Turning at:
ATTN: EULA/Legal Services
255 West Federal St.
Youngstown, OH 44503
This Exhibit A supplements the End User License Agreement. User’s installation and use of the Software constitutes User’s acceptance of these Terms and Conditions (hereinafter “Terms”), which apply to User’s version of the Software, in their entirety.
EXAMVIEW® PUBLISHER (TEXTBOOK EDITION) VERSIONS. If User is using ExamView® then Turning licenses ExamView® software to User only on the conditions that: (a) User has adopted and continues to use text in User’s class which is specified for use with ExamView; and (b) User accepts all of the Terms as set out in the EULA and this Exhibit A to the EULA. This license does not apply to any publisher content included with ExamView®, ExamView® Assessment Suite, or ExamView® Pro software products (i.e., tests, test banks, and other content files). User may install and use the ExamView® Test Player (but not the entire ExamView® Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers) solely for use at a single building or campus provided that each Instructor who accesses and uses the Software must have adopted and be using the specified text in his or her class. User may copy the Software for backup and archival purposes, provided that the original and each copy are kept in User’s possession.
EXAMVIEW® RETAIL VERSIONS. If User is using ExamView® (Retail Version), User may install and use the ExamView® Test Player (but not the entire ExamView® Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers). User may copy the Software for backup and archival purposes, provided that the original and each copy are kept in User’s possession.
TURNING’S EXAMVIEW® LEARNING SERIES. Turning owns all the intellectual property associated with the Software, including all files/questions contained in User’s ExamView® Learning Series package. If User is installing and using ExamView® data files on behalf of a third-party (including, without limitation, User’s employer), then User warrants and represents that User has the authority to accept this license (and all of its terms and conditions) on such third-party’s behalf, that such third-party will be bound by this License Agreement. User may install and use the files contained in User’s ExamView® package and any files that User is authorized by this License Agreement to make (also referred to herein as “Data Files”) on the hard disks of a single standalone computer (User may install them on both an office and a home computer provided that both are for User’s personal use and will not be used simultaneously by other instructors). If User has acquired Data Files pursuant to a multiple-user site license, User may install and use the Data Files on the hard disks of standalone computers up to the number of computers specified on the invoice. User may use the Data Files (a) within Turning’s programs, (b) within third-party software, and (c) to create tests. In any case, the Data Files and tests derived from them may only be used by individuals at the building or in the district or campus as specified by the multiple-user site license. User acknowledges and agrees that the Data Files, as they may be altered by User, and the tests composed by user through the use of the Data Files shall constitute “derivative works” for copyright purposes and as such term is understood under the Copyright Act. Use of said derivative works based on Data Files shall be subject to the permission set forth in this License Agreement and all of the restrictions set forth in this License Agreement.