Lecando LCMS License Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PROGRAM. LECANDO WILL LICENSE THE PROGRAM TO YOU ONLY IF YOU FIRST ACCEPT THE TERMS OF THIS AGREEMENT. BY USING THE PROGRAM YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE UNUSED PROGRAM TO THE PARTY (EITHER LECANDO OR ITS RESELLER) FROM WHOM YOU ACQUIRED IT TO RECEIVE A REFUND OF THE AMOUNT YOU PAID.

The Program is owned by Lecando AB (Lecando) and is copyrighted and licensed, not sold.

The term "Program" means the original program and all whole or partial copies of it. A Program consists of machine-readable instructions, its components, data, audio-visual content (such as images, text, recordings, or pictures), and related licensed materials.

This Agreement includes License Information, Explanation of Terms, Part 1 - General Terms, Part 2 - Software Maintenance Terms, Part 3 - Country-unique Terms and is the complete agreement regarding the use of this Program, and replaces any prior oral or written communications between you and Lecando. The terms of Part 2 and License Information may replace or modify those of Part 1.

License information
The Program listed below is licensed under the following terms and conditions in addition to those of the Lecando LCMS License Agreement.

Program Name: Lecando Learning Content Management System (Lecando LCMS)

Explanation of terms
A "Proof of Entitlement" ("PoE") is evidence of your authorization to use a Program at a specified level. That level may be measured, for example, by the number of processors or users.

The Program is warranted and program services will be available until the end date specified in the PoE.

The license to the Program entitles you to install and use one (1) copy of the Program for each valid PoE.

"Use" means utilization of the Program by loading, transmitting or copying the same into temporary (e.g. RAM) or permanent memory (e.g. hard disk, CD-ROM or other storage device) of the System for the processing of the Program.

Money-back Guarantee:
If for any reason you are dissatisfied with the Program, return it within 30 days from the invoice date, to the party (either Lecando or its reseller) from whom you acquired it, for a refund. This applies only to your first acquisition of the Program.

Specified Operating Environment:
The Program's specifications and specified operating environment information may be found in documentation accompanying the Program, if available, such as a read-me file, or other information published by Lecando, such as an announcement letter.

"Upgrade" means new versions of the Program including new features, bug fixes, patches and service packs. An upgrade excludes hardware, network, consulting services, third party products, operation and general computer system maintenance.

"Support" means answers to questions, guidance, and other assistance as determined by Lecando. Support excludes hardware; configuration of hardware and networking services; consulting services; general solution provider related services; third party products; operation; and general computer system maintenance.

Part 1 - General Terms

1. License
Use of the Program: Lecando grants you a nonexclusive license to use the Program. You may (1) use the Program to the extent of authorizations you have acquired, and (2) make and install copies to support the level of use authorized, providing you reproduce the copyright notice and any other legends of ownership on each copy, or partial copy, of the Program.

If you acquire this Program as a program upgrade, your authorization to use the Program from which you upgraded is terminated.

The extent of authorizations you have acquired must at least be equal to the extent of authorization that you have acquired for the IBM Lotus Learning Management System (LMS) or IBM Lotus Workplace Collaborative Learning (WCL) that the Program is connected to and or integrated with.

You will ensure that anyone who uses the Program does so only in compliance with the terms of this Agreement.

You may not (1) use, copy, modify, or distribute the Program except as provided in this Agreement; (2) reverse assemble, reverse compile, or otherwise translate the Program except as specifically permitted by law without the possibility of contractual waiver; or (3) sublicense, rent, or lease the Program.

Transfer of Rights and Obligations: You may transfer all your license rights and obligations under a PoE for the Program to another party by transferring the PoE and a copy of this Agreement and all documentation. The transfer of your license rights and obligations terminates your authorization to use the Program under the PoE.

2. Proof of Entitlement (PoE)
The PoE for this Program is evidence of your authorization to use this Program and of your eligibility for warranty services, future upgrade program prices (if announced), and potential special or promotional opportunities.

3. Charges and Taxes
Lecando defines use for the Program for charging purposes and specifies it in the PoE. Charges are based on extent of use authorized. If you wish to increase the extent of use, notify Lecando or its reseller and pay any applicable charges. Lecando does not give refunds or credits for charges already due or paid.

If any authority imposes a duty, tax, levy or fee, excluding those based on Lecando's net income, upon the Program supplied by Lecando under this Agreement, then you agree to pay that amount as Lecando specifies or supply exemption documentation.

4. Limited Warranty
Lecando warrants that when the Program is used in the specified operating environment it will conform to its specifications. Lecando does not warrant uninterrupted or error-free operation of the Program or that we will correct all Program defects. You are responsible for the results obtained from the use of the Program. The warranty period for the Program expires when its Program services are no longer available. The License Information specifies the duration of Program services.

During the warranty period warranty service is provided without charge for the unmodified portion of the Program through defect-related Program services. Program services are available for at least one year following the Program's general availability. Therefore, the duration of warranty service depends on when you obtain your license. If the Program does not function as warranted during the first year after you obtain your license and Lecando is unable to resolve the problem by providing a correction, restriction, or bypass, you may return the Program to the party (either Lecando or its reseller) from whom you acquired it and receive a refund in the amount you paid for it. To be eligible, you must have acquired the Program while Program services (regardless of the remaining duration) were available for it.

THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

These warranties give you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusion or limitation may not apply to you. In that event such warranties are limited in duration to the warranty period. No warranties apply after that period.

5. Limitation of Liability
Circumstances may arise where, because of a default on Lecando's part or other liability, you are entitled to recover damages from Lecando. In each such instance, regardless of the basis on which you may be entitled to claim damages from Lecando, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), Lecando is liable for no more than (1) damages for bodily injury (including death) and damage to real property and tangible personal property, and (2) the amount of any other actual direct damages up to the greater of U.S. $10,000 (or equivalent in your local currency) or the charges for the Program that is the subject of the claim.

LECANDO WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF LECANDO, OR ITS RESELLER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Lecando will not be liable for (1) loss of, or damage to, your records or data, or (2) any damages claimed by you based on any third party claim.

This limitation of liability also applies to any developer of a Program supplied to Lecando. It is the maximum for which Lecando and its suppliers are collectively responsible.

6. General
Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.

Lecando may terminate your license if you fail to comply with the terms of this Agreement. If Lecando does so, your authorization to use the Program is also terminated.

You agree to comply with applicable export laws and regulations.

Neither you nor Lecando will bring a legal action under this Agreement more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation.

Neither you nor Lecando is responsible for failure to fulfill any obligations due to causes beyond its control.

The laws of the country in which you acquire the Program govern this Agreement, except (1) in Australia, the laws of the State or Territory in which the transaction is performed govern this Agreement; (2) in Albania, Armenia, Belarus, Bosnia/Herzegovina, Bulgaria, Croatia, Czech Republic, Georgia, Hungary, Kazakhstan, Kirghizia, Former Yugoslav Republic of Macedonia (FYROM), Moldova, Poland, Romania, Russia, Slovak Republic, Slovenia, Ukraine, and Federal Republic of Yugoslavia, the laws of Austria govern this Agreement; (3) in the United Kingdom, all disputes relating to this Agreement will be governed by English Law and will be submitted to the exclusive jurisdiction of the English courts; (4) in Canada, the laws in the Province of Ontario govern this Agreement; and (5) in the United States and Puerto Rico, and People's Republic of China, the laws of the State of New York govern this Agreement.

Part 2 - Software Maintenance Terms

Software Maintenance services includes Program Support and Upgrades. The first 12 months of Software Maintenance services as described herein are a part of the initial license purchase for the Program. After the first 12 months access to the Software Maintenance services are subject to payment of the Annual Software Maintenance Renewal fee.

If the customer, for any reason, fails to pay the Annual Software Maintenance Renewal fee access to the Software Maintenance services will terminate. In order to reinstate access to Software Maintenance services the customer will have to pay the Software Maintenance Reinstatement fee.

Upgrades
This Agreement entitles the customer to receive download and install all official Upgrades for the Program that Lecando makes available for the customer during the term of this Agreement. Upgrades will be made available on the Lecando support site on the Internet or any other site that Lecando informs the Licensee of. The customer will be responsible for performing operations on the customer computer system, and Lecando shall have no responsibility to perform operations on the customer computer system.

Support
This Agreement entitles the customer to obtain Support from Lecando. Lecando shall have no responsibility to perform operations on the customer computer system. The customer agrees to provide to Lecando all information reasonably requested by Lecando to enable Lecando to provide Support. Such information may include, but not be limited to, the type of hardware the customer are using, a description of the problem for which the customer seek Support, and additional software the customer are using that falls outside the Subject Matter Scope of Coverage. The customer understand and agree that the completeness and accuracy of the information the customer provide to Lecando pursuant to this Section may affect Lecando's ability to provide Support.

Subject matter scope of coverage
Lecando will provide Support for the current release of the official versions the Program. Lecando will provide no Support for software that is not included as part of its official Program. The customer understands and agrees that the Program may not function with certain operating systems and software. Such software is unsupported software. Lecando shall have no obligation to provide Support for any system that is or that includes unsupported software. Supported operating systems and software are identified in the official releases of the Program.

Availability of coverage
The customer is entitled to seek Support 9:00am thru 5:00pm Central European time, Monday thru Friday, throughout the term of this Agreement.

Who may seek Support
The customer designates one person that may seek Support. The customer is responsible for all persons who seek Support. Lecando shall have no responsibility for any unauthorized use of Support.

Response times
Lecando shall respond to requests for Support within 16 working hours of the request. A response to a request for Support may consist of receipt of and acknowledgement by Lecando of the customer request for Support, and may not include answers to the customer request for Support.

Language
Support will be provided in English and Swedish language only.

Incidents
An Incident is a problem that cannot be broken down into subordinate problems. The customer agrees to cooperate with Lecando in classifying the customer requests for Support as Incidents, and the customer agree that Lecando retains the discretion to determine what constitutes an Incident.

The customer seeks Support either through email or telephone.

The customer acknowledge and understand that no software is perfect or error free, and that despite its commercially reasonable efforts, Lecando may be unable to provide answers to or resolve some or all Incidents or otherwise provide the Support the customer seek. Lecando makes no promises; guarantees or assurances of any kind that it will be able to provide the Support the customer seek. In the event that Lecando is unable to resolve an Incident, that Incident shall not be charged against the number of Incidents available to the customer.

Resolution
Resolution of a Support Request is attained via one of the following:

1. Accomplishment of the goals or normalization of the symptoms described in the initial contact,
2. Mutual agreement that these are unattainable through Support, due to code restrictions, feature limitations, or other reasons, or
3. Customer not responding to a communication from Lecando in 5 calendar days.

Lecando will employ reasonable efforts to perform the services requested and to communicate the reasons for workarounds and/or limitations in Support.

Support web site
Although Lecando makes every effort to provide quality content, there may be inaccuracies and typographical errors on the Web site from time to time. Lecando and third parties who provide content, services and software on the Web site may change the software, content, terms and prices at any time without any notice. The Web site will change from time to time.

As a service to its customers, Lecando may provide links to Third Party Sites, but Lecando do not control and are not responsible for the content or maintenance of such Third Party Sites. A link does not indicate an endorsement of Third Party products or services by Lecando. Lecando may remove or change a Third Party link at any time and without notice.

Lecando may, but is not obligated to, monitor or review any areas on the Web site where users transmit or post communications or communicate solely with each other, including, but not limited to chat rooms, bulletin boards or other user forums, and the content of any such communications. Lecando will have no liability related to the content of any such communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise.

No warranty
THE MATERIALS ON THE WEB SITE, THE SUPPORT, OTHER SERVICES, INFORMATION, AND SOFTWARE PROVIDED TO THE CUSTOMER BY LECANDO AB ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Part 3 - Country-unique Terms

AUSTRALIA: Limited Warranty (Section 4): The following paragraph is added to this Section: The warranties specified in this Section are in addition to any rights you may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation. Limitation of Liability (Section 5): The following paragraph is added to this Section: Where Lecando is in breach of a condition or warranty implied by the Trade Practices Act 1974, Lecando's liability is limited to the repair or replacement of the goods, or the supply of equivalent goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply.

EGYPT: Limitation of Liability (Section 5): The following replaces item 2 in the first paragraph of this Section: (2) as to any other actual direct damages, Lecando's liability will be limited to the total amount you paid for the Program that is the subject of the claim.

FRANCE : Limitation of Liability (Section 5): The following replaces the second sentence in the first paragraph of this Section: In such instances, regardless of the basis on which you are entitled to claim damages from Lecando, Lecando is liable for no more than (1) damages for bodily injury (including death) and damage to real property and tangible personal property; and (2) the amount of any other actual direct damages up to the greater of a) EUR 100,000 (or equivalent in local currency) or b) the charges for the Program which is the subject of the claim.

GERMANY: Limited Warranty (Section 4): The following paragraphs are added to this Section: The minimum warranty period for Programs is six months. In case a Program is delivered without Specifications, we will only warrant that the Program information correctly describes the Program and that the Program can be used according to the Program information. You have to check the usability according to the Program information within the "money-back guaranty" period. The following replaces the first sentence of the first paragraph of this Section: The warranty for an Lecando Program covers the functionality of the Program for its normal use and the Program's conformity to its Specifications. Limitation of Liability (Section 5): The following paragraph is added to the Section: The limitations and exclusions specified in the Agreement will not apply to damages caused by Lecando with fraud or gross negligence, and for express warranty. In item 2, replace "U.S. $10,000" with "EUR 50,000". The following sentence is added to the end of item 2 of the first paragraph: Lecando's liability under this item is limited to the violation of essential contractual terms in cases of ordinary negligence.

INDIA: Limitation of Liability (Section 5): The following replaces items 1 and 2 in the first paragraph: (1) liability for bodily injury (including death) or damage to real property and tangible personal property will be limited to that caused by Lecando's negligence; and (2) as to any other actual damage arising in any situation involving nonperformance by Lecando pursuant to, or in any way related to the subject of this Agreement, Lecando's liability will be limited to the charge paid by you for the individual Program that is the subject of the claim. General (Section 6): The following replaces the fourth paragraph of this Section: If no suit or other legal action is brought, within two years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim.

IRELAND: Limited Warranty (Section 4): The following paragraph is added to this Section: Except as expressly provided in these terms and conditions, all statutory conditions, including all warranties implied, but without prejudice to the generality of the foregoing, all warranties implied by the Sale of Goods Act 1893 or the Sale of Goods and Supply of Services Act 1980 are hereby excluded. Limitation of Liability (Section 5): The following replaces items 1 and 2 in the first paragraph of this Section: (1) death or personal injury or physical damage to your real property solely caused by Lecando's negligence; and (2) the amount of any other actual direct damages, up to the greater of EUR 10,000 in respect of Programs or 125 percent of the charges for the Program that is the subject of the claim or which otherwise gives rise to the claim. The following paragraph is added at the end of this Section: Lecando's entire liability and your sole remedy, whether in contract or in tort, in respect of any default will be limited to damages.

ITALY: Limitation of Liability (Section 5): The following replaces the second sentence in the first paragraph: In each such instance unless otherwise provided by mandatory law, Lecando is liable for no more than damages for bodily injury (including death) and damage to real property and tangible personal property and (2) as to any other actual damage arising in all situations involving non-performance by Lecando pursuant to, or in any way related to the subject matter of this Agreement, Lecando's liability, will be limited to the total amount you paid for the Program that is the subject of the claim.

NEW ZEALAND: Limited Warranty (Section 4): The following paragraph is added to this Section: The warranties specified in this Section are in addition to any rights you may have under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods or services which Lecando provides, if you require the goods or services for the purposes of a business as defined in that Act. Limitation of Liability (Section 5): The following paragraph is added to this Section: Where Programs are not acquired for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act.

PEOPLE'S REPUBLIC OF CHINA: Charges (Section 3): The following paragraph is added to the Section: All banking charges incurred in the People's Republic of China will be borne by you and those incurred outside the People's Republic of China will be borne by Lecando.

UNITED KINGDOM: Limitation of Liability (Section 5): The following replaces items 1 and 2 in the first paragraph of this Section: (1) death or personal injury or physical damage to your real property solely caused by Lecando's negligence; (2) the amount of any other actual direct damages, up to the greater of Pounds Sterling 75,000 in respect of Programs or 125 percent of the charges for the Program that is the subject of the claim or which otherwise gives rise to the claim. The following item is added: (3) breach of Lecando's obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982. The following paragraph is added at the end of this Section: Lecando's entire liability and your sole remedy, whether in contract or in tort, in respect of any default will be limited to damages.

End of Lecando LCMS License Agreement