SCANTRON’S LOCKDOWN BROWSER (SCANTRON CONTENTLOCK) SOFTWARE LICENSE AND USER AGREEMENT

 

THIS SOFTWARE LICENSE AND USER AGREEMENT ("License Agreement") sets forth the terms and conditions between you (“User”) and Scantron governing User’s use of Scantron’s Lockdown Browser, Scantron ContentLock, as agreed by User and Scantron (collectively “Parties”).

 

I. DEFINITIONS. The following definitions apply throughout the License Agreement:

A. "Documentation" means Scantron's published user manuals relating to the Software.

B. "Error" means any failure of the Software to operate in conformance with the Documentation in any material respect.

C. "Modification" means any scheduled enhancements, revisions, enhancements, bug fixes, patches, Error resolutions and all other changes to the Software required to insure that the Software operates in conformance with the Documentation.

D. "Software" means the Scantron’s Lockdown Browser (Scantron ContentLock) and any Modifications.

II. LICENSE GRANT. Subject to the terms and conditions of this License Agreement, Scantron hereby grants to User a limited, non-sublicensable, non-exclusive, non-transferable, royalty-free, worldwide, enterprise-wide right license to use the Software and the Documentation for so long as Scantron makes the Software available. Any rights not expressly granted in this license are reserved to Scantron.

III. PERMITTED USE OF THE SOFTWARE. User may install and use the Software on an unlimited number of computers for User’s purposes only. User also may make appropriate number of the backup copies of the Software but not more than ten (10). ANY USE OF THE SOFTWARE OTHER THAN AS EXPRESSLY AUTHORIZED BY THIS SECTION OR FOR ANY RESALE OR FURTHER DISTRIBUTION OF THE SOFTWARE CONSTITUTES A MATERIAL BREACH OF THIS LICENSE AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS.

IV. MODIFICATIONS AND UPGRADES AND UPDATES. Modifications shall be provided to User by Scantron on a commercially reasonable basis.Upgrades and updates of the Software shall be provided to User by Scantron as long as, and to the extent in which, Scantron in its exclusive discretion makes such upgrades and updates available to the Users of the free version of the Software.

V. PROPRIETARY RIGHTS AND RESTRICTIONS ON USE.

A. Proprietary Rights. Scantron shall retain all right, title, and interest in Software, any software program or other version of Software and Documentation. Pre-existing intellectual property and all improvements, derivative products, or updates thereto that Scantron uses or develops in connection with this License Agreement, or services supplied under this License Agreement, shall remain or be the sole and exclusive property of Scantron. User agrees not to challenge Scantron’s rights in and to Software, including, but not limited to, the copyrights, patents, or other intellectual property regarding or relating to Software.

B. Restrictions. Software shall be used by User as outlined in Section III. User shall not, directly or indirectly, permit others to: copy, duplicate, or furnish to others any physical or electronic version of Software; remove any copyright or other notice contained or included in any material provided by Scantron; create or attempt to create the source computer programs or any part of them from the operational object programs licensed under this License Agreement; change or modify Software or create derivative works from Software, or reverse engineer Software; or use the Software to provide any services to any third parties. User is not permitted to use the Software in connection with the provision of any commercial services which include processing or transferring the data of or for other persons or entities (“Data”), including cloud computing and “Software as a Service” solutions, providing storage capacities for Data; transmitting, routing of or providing connection to Data, or providing information search tool services. User may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other similar arrangement. 

C. User shall notify Scantron immediately of the unauthorized possession, use, or knowledge of any material supplied to User pursuant to this License Agreement. In the event User breaches or attempts to breach any of the provisions of this Section, Scantron shall have the right, in addition to such other remedies that may be available to it, to injunctive relief enjoining such breach or attempt to breach, it being acknowledged that legal remedies are inadequate.  The provisions of this Section shall survive the termination of this License Agreement.

VI. LICENSE FEES AND PAYMENT. User shall pay to Scantron the license fees, if any, for the Software agreed between the Parties ("License Fees"). All fees hereunder exclude all applicable sales, use, value-added, property and other taxes, including duties and similar mandatory payments, and User will be responsible for payment of all such taxes (other than taxes based on Scantron's net income), and any related penalties and interest, arising from the payment of such fees, the delivery or license of the Software, or the provision of any services to User. All amounts under this License Agreement are in U.S. dollars and payment must be made in such. User will make all payments of amounts due under this License Agreement to Scantron free and clear of, and without reduction for, any withholding taxes. If User is legally required to make any such withholding from any payment due to Scantron under this License Agreement, the sum payable by User upon which such withholding is based shall be increased to the extent necessary to ensure that, after such withholding, Scantron receives an amount equal to the amount Scantron would have received in the absence of such withholding. User will provide Scantron with official receipts issued by the appropriate taxing authority, or such other evidence as Scantron may reasonably request, to establish that such taxes have been paid. Scantron reserves the right to charge interest on any overdue amounts at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid plus reasonable costs incurred in collection (including reasonable attorneys' fees).

VII. WARRANTY.

A. Scantron represents and warrants that to the best of its knowledge, it has the right to grant the rights granted herein.

B. Scantron represents and warrants that throughout the Term, the Software shall have the functional, technical, and performance capabilities described in the operating Documentation, and when implemented in accordance with Scantron’s instructions, will, so long as utilized in accordance with its operating Documentation, materially perform in accordance with the operating Documentation. No oral or written information or advice given by Scantron shall create a warranty. Scantron does not warrant that Software will meet User’s requirements or User’s intended use.

C. User’s sole and exclusive remedy and Scantron’s only obligation under the limited warranty in Section VII.B. is Scantron to use commercially reasonable efforts to cause Software to operate substantially in accordance with the then-current operating Documentation for Software.

D. Disclaimer. EXCEPT FOR THE LIMITED REPRESENTATIONS, WARRANTIES, AND COVENANTS EXPRESSLY STATED HEREIN, THE SOFTWARE AND DOCUMENTATION, AS WELL AS ANY MODIFICATIONS, ARE PROVIDED "AS IS," AND SCANTRON AND ITS SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE LIMITED REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY STATED HEREIN, SCANTRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE, DOCUMENTATION OR MODIFICATIONS WILL BE FREE FROM BUGS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. USER ACKNOWLEDGES THAT SCANTRON IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSON OR ENTITY OTHER THAN SCANTRON OR ITS EMPLOYEES, AGENTS, OR CONTRACTORS OR FOR NETWORK FAILURE. USER FURTHER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT.

VIII. LIMITATION OF LIABILITY. Be aware that the Software may make changes to User’s computer that may adversely affect its functionality, such as deleting system or application files identified (correctly or incorrectly) by the Software as infected. User acknowledges and agrees that such changes to User’s computer may occur as a result of User’s usage of the Software. The Software is not fault-tolerant and as such is not designed for use in hazardous environments requiring fail-safe performance. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL SCANTRON BE LIABLE FOR ANY LOSS OF PROFITS, SAVINGS OR GOODWILL, LOSS OR INACCURACY OF DATA, OR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) THAT RESULT FROM THE USE OF ANY SOFTWARE OR SERVICES, INCLUDING BUT NOT LIMITED TO THE INABILITY TO USE, EVEN IF SCANTRON OR AN AUTHORIZED REPRESENTATIVE OF SCANTRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT SHALL EITHER PARTY'S LIABILITY TO THE OTHER ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED FIVE US DOLLARS. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY HEREIN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL NOT APPLY TO GROSS NEGLIGENCE, INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT, OR FRAUD.

IX. PRIVACY; PROCESSING OF PERSONAL INFORMATION. The Software collects certain information, which may include personally identifiable information, from the computer on which it is installed, including:

A. Certain Software performance metrics, including but not limited to bandwidth and Error logs;

B. Certain Software behavioral characteristics, including but not limited to running processes and attempts to violate the specific test configuration;

C. Copies of the files identified by the Software as potentially infected or parts thereof may be automatically sent to Scantron for further examination and analysis;

D. Certain information about User’s computer hardware, software and/or network connection;

E. Certain information about the installation and operation of the Software and encountered Errors or problems; and

F. Statistical information about threats detected by the Software.

Scantron reserves the right to store and use the information collected by the Software and to share such information within Scantron in order to improve Scantron’s current and future products and services, to help Scantron develop new products and services, and to better understand the behavior of Scantron’s users. Scantron may publish or share such information with third parties that are not part of Scantron but will only ever do so after removing personally identifiable information. By using the Software, User acknowledges and agrees that Scantron or its distributors or agents may collect and use the information as described above. User is giving this consent on behalf of all users of all computers where the Software will be used under this license and User accepts full responsibility for informing all users and acquiring their fully informed, free, and valid consent with processing of their personal information by the Software as described above.

 

Notwithstanding anything to the contrary in the Scantron privacy policy, User consent during the term of this License Agreement and for one (1) year thereafter to (i) Scantron sharing information collected by User during User installation or registration of the Software with Scantron’s distributors and other business partners and (ii) use of such information by Scantron, its distributors and other business partners to present User with information that may be relevant to User, including offers of software, services or other products.

 

The collected information may be transferred to third parties or to other countries that may have less protective data protection laws than the country or region in which User is situated (including the European Union). Scantron takes measures to ensure that any collected information will receive an adequate level of protection if and when transferred. Notwithstanding anything to the contrary in this License Agreement or any Documentation or other materials provided to User in connection with the Software, Scantron reserves all rights to cooperate with any legal process or government inquiry (including, but not limited to, court orders and law enforcement requests) related to User’s use of the Software. In connection with such cooperation, Scantron may provide documents and information relevant to a court subpoena or government or other legal investigation, which may include disclosure of User’s personally identifiable information. Scantron may also use statistics derived from the collected information to track and publish reports on security risk trends. By using the Software, User acknowledges and agrees that Scantron may collect, transmit, store, disclose and analyze such information for any of the foregoing purposes listed in this Section.

X. TERM AND TERMINATION.

A. Term. This License Agreement shall remain in effect as long as the Software is installed on the User’s computer and until terminated as provided herein.  This License Agreement will immediately terminate upon User’s breach of any obligation contained herein.

B. Effects of Termination. Upon termination of this License Agreement for any reason, any amounts owed under this License Agreement will be immediately due and payable, all rights and licenses granted under this License Agreement will immediately cease to exist, User logins will be de-activated, and User must promptly discontinue all use of the Software and Documentation. Notwithstanding anything to the contrary and for the avoidance of doubt, User shall only be liable for the prorated license fee, if any, up to the effective date of termination and shall not be liable for paying the license fee for the unused portion of the term. Upon termination, User shall erase all copies of the Documentation from User's computers or destroy all copies of the Software and Documentation on tangible media in User's possession or control.  All obligations relating to non-use, disclaimer of warranties (Section VII), limitation of liability (Section VIII), termination, and such other terms which by their nature survive termination, will survive termination of this License Agreement.

IX. GENERAL. 

A. Independent Contractors. The relationship of Scantron and User established by this License Agreement is that of independent contractors, and nothing contained in this License Agreement shall be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.

B. Compliance with Laws. Each Party will comply with all applicable export and import control laws and regulations in its use of the Software and will not export or re-export the Software without all required United States and foreign government licenses.

C. Governing Law. This License Agreement shall be deemed to have been made and performed in, and shall be construed pursuant to the laws of the State of North Carolina, excluding application of its conflict of laws principles. If either Party retains counsel for the purpose of enforcing or preventing the breach or threatened breach of any provision contained herein or otherwise retains counsel to enforce any right or remedy it may have, then the prevailing Party will be entitled to be promptly reimbursed by the non-prevailing Party for all reasonable costs, fees and expenses, including reasonable attorneys' fees, expended or so incurred by the prevailing Party. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and shall not apply to this License Agreement.

D. Remedies. Each Party recognizes and agrees that there is no adequate remedy at law for a threatened or actual breach of Section V, that such a breach would irreparably harm the non-breaching Party and that such non-breaching Party is entitled to seek equitable relief (including an injunction) with respect to any such breach or potential breach, in addition to any other remedies available at law. Scantron reserves the right to any other remedies available under law in the event User’s breach of this License Agreement adversely affects Scantron or its distributors or agents. Nothing in this License Agreement will diminish any rights User may have under existing consumer protection legislation or other applicable laws in User’s jurisdiction that may not be waived by contract.

E. Waivers and Amendments. Any waiver of or amendment to the terms of this License Agreement shall be effective only if made in writing and signed by an authorized and duly empowered representative of each of the Parties hereto. No failure to exercise, and no delay in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right hereunder preclude further exercise of any right hereunder.

F. Severability. If any provision of this License Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall remain in full force and effect.

G. Construction. Section headings in this License Agreement are for convenience only and are not to be used in interpreting this License Agreement. As used in this License Agreement, the word "including" means "including but not limited to." The Parties acknowledge and agree that no implied rights or licenses are conveyed by this License Agreement, that all rights are specific to the Parties and do not extend to their parents, subsidiaries or affiliates and that all rights in and to the Software not expressly granted to User in this License Agreement are reserved by Scantron and its suppliers.

H. U.S. Government Rights. The Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software (a) only as “commercial items” and (b) with only those rights set forth herein.

I. Section 365(n) of Internal Revenue Code. All rights and licenses granted under or pursuant to this License Agreement by Scantron to User are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (the "Code"), licenses to rights to "intellectual property" as defined under the Code. The Parties agree that User, as licensee of such rights under this License Agreement, shall retain and may fully exercise all of its rights and elections under the Code. The Parties further agree that, in the event of the commencement of bankruptcy proceeding by or against Scantron under the Code, User shall be entitled to retain all of its rights under this License Agreement.

J. Export Regulations. User agrees and accepts that the Software and the Documentation may be subject to import and export laws of any country, including those of the United States (specifically the Export Administration Regulations (EAR)) and the European Union. If User transfers or exports the Software, which in all cases must be done in accordance with this Agreement, User agrees to and acknowledges that User is exclusively responsible for complying with all applicable laws and regulations, including but not limited to all United States and European Union trade sanctions and export regulations (including any activities relating to nuclear, chemical, or biological materials or weapons, missiles, or technology capable of mass destruction), regardless of the country in which User resides in or of which User is a citizen.

K. Entire Agreement. Both Parties agree that this License Agreement, along with the Exhibits, if any, attached hereto, is the complete and exclusive statement of the mutual understanding of the Parties with respect to the Software and license thereof and supersedes and cancels all previous and contemporaneous written and oral agreements and communications relating to the subject matter of this License Agreement.

L. Order of Precedence. If there is any conflict between the terms and conditions of this License Agreement and any agreement with Scantron and the User relating to the Software and license thereof, this License Agreement shall control with respect to Software and the license thereof.