Language Dynamics Group, LLC
SERVICE USER LICENSE AGREEMENT

This Language Dynamics Group, LLC (“LDG”) License Agreement (“Agreement”) governs access to and use of free and fee-based products and services offered by LDG. By accessing, using, printing, displaying or registering for such services or products, you (“CUSTOMER”) agree to the terms of this Agreement in which, CUSTOMER receives a limited license to access, use, print, display or register for such services or products.

PLEASE CAREFULLY READ THIS AGREEMENT BEFORE ACCEPTING BELOW. PROCEEDING WITH REGISTRATION, OR ACCESSING, USING, PRINTING, OR DISPLAYING THE PRODUCTS OR SERVICES INDICATES CUSTOMER ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS, CUSTOMER SHOULD DECLINE THE REGISTRATION AND CUSTOMER MAY NOT ACCESS, USE, PRINT, OR DISPLAY THE PRODUCTS OR SERVICES.

LDG has developed a proprietary direct, frequent and continuous assessment system designed to monitor student achievement and instruction. In addition, LDG has developed systems employed in establishing and maintaining a database of student performance; providing skill assessment protocols, testing materials and instructions; and assessment probes, (collectively referred to in this Agreement as the “MATERIALS”). Some or all of the MATERIALS are copyrighted. All of the MATERIALS are proprietary. Use of the MATERIALS by any individual, organization, entity or enterprise is strictly prohibited except for a CUSTOMER entity authorized pursuant to this Agreement.

The MATERIALS, software, online software documentation, Implementation Training Manual and the LDG web support site (collectively the “Products and Services”) and any modifications, updates, revisions, or enhancements thereof are subject to the terms of this Agreement.

1. License Grant

LDG hereby grants to CUSTOMER and CUSTOMER hereby accepts from LDG a limited, non-exclusive, non-transferable, revocable license to access, print and use the MATERIALS for the limited purposes of assessing academic achievement and instruction of each LICENSED USER associated with CUSTOMER (as defined below).

“CUSTOMER” is a person, organization, public entity, business entity or enterprise which: (1) has paid a license fee to or is otherwise authorized by LDG to access, print and use the MATERIALS on behalf of a LICENSED USER; and (2) CUSTOMER and LICENSED USER have agreed to be bound by the terms and conditions of this Agreement.

“LICENSED USER” means:

(a) If CUSTOMER is a corporation, or public body such as a School, or School District, or similar organization, a LICENSED USER may include an individual employee or agent to whom CUSTOMER has conferred the right to use the MATERIALS. Any such individual is subject to the terms and conditions of this Agreement, and must agree to be bound by the terms and conditions of this Agreement.

(b). If CUSTOMER is a post-secondary academic institution, academic library or similar research institution, a LICENSED USER may also include a post secondary student and an academic researcher, provided that CUSTOMER identifies each to LDG and LDG consents to each.

In this Agreement, all references to CUSTOMER shall include LICENSED USER.

Upon expiration or termination of this Agreement, the nonexclusive limited license granted above shall automatically and immediately terminate and CUSTOMER agrees not to access, print or use the MATERIALS and, upon request of LDG, to return all MATERIALS then in possession of CUSTOMER to LDG or destroy and certify to LDG the manner and date of that CUSTOMER destroyed same.

2. Authorization

 The use of the MATERIALS is strictly limited to those provided for in this Agreement. The MATERIALS may be used only for educational, academic research and similar purposes. The MATERIALS may be used only for their stated and published purposes including monitoring of student performance scores, comparison of student performance scores, individually and across various cohort groups.

CUSTOMER agrees that the MATERIALS will not be:

(a) used for any “for-profit” commercial activities, unless specifically agreed in writing by LDG, including any use of any proprietary designs or marks of LDG;

(b) copied, duplicated, modified, translated, adapted, publicly displayed, or publicly performed without the express written consent of LDG;

(c) downloaded, transmitted, or re-transmitted or transferred for the purpose of evading the prohibition on copying, duplication or modification;

(d) sold, transferred, conveyed, pledged licensed, or sub-licensed;

(e) reverse engineered, decompiled, disassembled or subject to efforts to derive source code for any software and/or computer code components of the MATERIALS; or

(f) exploited for any purpose different from or contrary to the rights and interests of LDG or inconsistent with the stated terms and purposes of this Agreement.

Notwithstanding the foregoing, some of the MATERIALS, including any assessment protocols, which include assessment probes, testing sheets and instructions and similar information, may be duplicated for the internal distribution and administration of student performance tests, and to train employees of CUSTOMER, including each LICENSED USER, consistent with this Agreement.

3. Ownership

CUSTOMER is granted a limited non-exclusive limited license to use the MATERIALS under the terms of this Agreement in the business or professional activities of CUSTOMER. All right, title, and interest in and to the MATERIALS, the Product Services, the personal and business information LDG captures for registration and billing purposes and all intellectual property rights in and to the MATERIALS, the Product Services and the website of LDG, and all other materials shall remain solely vested in, to and with LDG.

5. Multi Customer Accounts

This license for each Product or Service creates a single account. CUSTOMER may then create additional sub-accounts, and each sub-account that CUSTOMER creates shall be fully subject to this Agreement.

6. Password

As part of the registration process for Products and Services, CUSTOMER will select a password. CUSTOMER is solely responsible for maintaining the confidentiality of the CUSTOMER password and agrees that LDG has no obligations with regard to the use by third parties of such password. CUSTOMER is entirely responsible for any activity occurring under the CUSTOMER account (and any sub-account) and password. CUSTOMER agrees to notify LDG immediately if CUSTOMER has any reason to believe that the security of CUSTOMER data or any password has been compromised.

Should CUSTOMER forget the password, LDG will reset it for CUSTOMER at CUSTOMER’s request; however, in order to protect the privacy of CUSTOMER and the data of CUSTOMER, LDG may require CUSTOMER to provide specific information.

7. Privacy & Security

LDG has taken reasonable actions, including use of encryption and firewalls, to ensure that data and information of CUSTOMER is disclosed only to those designated by CUSTOMER, as set forth in the applicable Privacy Statement posted on this site. However, CUSTOMER acknowledges that the Internet is an open system and LDG cannot and does not warrant or guarantee that third parties will not intercept same.

8. Server Availability and Scheduled Down Times

LDG schedules daily maintenance from 2:00 a.m. to 4:00 a.m. Central Standard Time, Monday through Sunday. In the event a mission-critical maintenance situation arises, LDG may be required to perform emergency maintenance at any time. During these scheduled and emergency maintenance periods, CUSTOMER may be unable to transmit and receive data. CUSTOMER agrees to accept the risk of such unavailability and to fully cooperate with LDG during the scheduled and emergency maintenance periods.

9. Indemnification

CUSTOMER hereby agrees to indemnify, defend, and hold harmless LDG from and against any and all claims, proceedings, damages, liability, and costs (including reasonable attorney fees) incurred by LDG in connection with any claim arising out of (i) any breach or alleged breach of any of CUSTOMER obligations set forth herein, (ii) any acts by CUSTOMER, or (iii) MATERIALS or information posted or transmitted by CUSTOMER in connection with the Products and Services regardless of the type or nature of the claim. CUSTOMER shall cooperate as fully as reasonably required in the defense of any claim. LDG reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by CUSTOMER and CUSTOMER shall not in any event settle any matter without the written consent of LDG.

10. Limitation of Liabilities and Remedies

THE MATERIALS AND THE PRODUCTS AND SERVICES (INCLUDING ALL CONTENT, SOFTWARE AND FUNCTIONS) ARE PROVIDED AS IS AND AS AVAILABLE AND WITH ALL FAULTS WITHOUT WARRANTY OF ANY KIND. LDG MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ANY AND ALL WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION, TITLE, SECURITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, OR UNINTERRUPTED ACCESS. LDG DISCLAIMS AND CUSTOMER WAIVES ALL LIABILITY ARISING FROM THE ACCESS, USE AND PRINTING OF THE MATERIALS AND PROVISION OF THE MATERIALS AND THE PRODUCTS AND SERVICES.

IN NO EVENT SHALL THE LIABILITY OF LDG TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES FOR ANY CAUSE WHATSOEVER RELATED TO OR ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO LDG DURING THE PRECEDING TWELVE MONTHS. IN NO EVENT WILL LDG BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE ANY MATERIALS EVEN IF LDG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT ANY CLAIM ARISING FROM USE OF OR ACCESS TO THE MATERIALS PROVISION OF ANY PRODUCTS AND SERVICES MUST BE MADE WITHIN ONE (1) YEAR OF THE FIRST DATE SUCH CLAIM FIRST ACCRUED OR SHALL BE DISMISSED AS UNTIMELY AND FOREVER BARRED.

THIS LIMITATION OF LIABILITY APPLIES TO ANY EXPENSES, DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR OF OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF DATA RECORDS, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTUOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION.

11. Term and Termination

Subject to the LDG Privacy Policy, if the Agreement is terminated by LDG for reasons other than breach of this Agreement by CUSTOMER, any student data entered by CUSTOMER will be made available to CUSTOMER either through a third party offsite vault storage provider or directly from LDG for up to ninety (90) days after termination. Charges may apply.

12. Modifications to License Agreement

LDG reserves the right to modify this Agreement, and the software or policies associated with the Products and Services and any MATERIALS at anytime without advance notice to CUSTOMER. Any modification shall take effect immediately when same is posted to www.languagedynamicsgroup.com. LDG may also impose limits on certain features and services or restrict CUSTOMER access thereto without notice or liability.

14. Support

At no additional charge, each CUSTOMER may contact customer service and assistance service, provided on the “About Us” page and LDG agrees to exert reasonable efforts to provide that customer service to CUSTOMER, as well as telephone and e-mail support, but each form of support is provided “AS IS” and “AS AVAILABLE” basis and CUSTOMER acknowledges that use of such support is at the sole risk of CUSTOMER. The support services may be changed at anytime without notice to CUSTOMER or may be discontinued in the sole discretion of LDG at anytime.

15. Recommended Environment

Any modification, derivative work, translation, or adaptation to the MATERIALS or the Products and Services by CUSTOMER shall be subject to a royalty-free, non-exclusive, irrevocable worldwide license to LDG in and to same. CUSTOMER agrees to promptly report to LDG all defects, inconsistencies, or issues arising from the MATERIALS and the Products and Services. CUSTOMER acknowledges that additional maintenance fees and upgrade costs may accrue in the event that LDG provides support for and/or is requested by CUSTOMER to rectify issues related thereto.

17. Software Documentation Manual

LDG provides a variety of documentation manuals in electronic form and LDG hereby agrees to permit CUSTOMER to access, use, reproduce, print and distribute each applicable Documentation Manual for the internal training, educational and assessment purposes of CUSTOMER.

18. Acceptance

This Agreement must be accepted by CUSTOMER and LDG. CUSTOMER may indicate acceptance of this Agreement by: (1) signing and returning to LDG the printed acceptance form; (2) by electronic acceptance indicating that CUSTOMER accepts the Agreement; or (3) by accessing, printing, displaying and/or use of the MATERIALS or ordering any of the packages of Products and Services. If CUSTOMER submits a purchase order for any products or services covered by this Agreement, CUSTOMER agrees that any pre-printed terms of such purchase order shall not apply or modify this Agreement and that this Agreement shall solely control and govern the transaction and such purchase order shall constitute acceptance of this Agreement.

The laws of the State of Wyoming shall govern this Agreement and the interpretation and issues of enforcement related thereto without regard to any conflicts of laws provisions therein. CUSTOMER agrees to the personal and subject matter jurisdiction of the court sitting in the State of Wyoming. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall be valid and enforceable according to its terms. “NLM” design is a proprietary mark of Language Dynamics Group, LLC.