TERMS

IMPORTANT:   THIS AGREEMENT (or “EULA”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS EDUCATION PROGRAM (the “Program”) (“YOU” OR “CUSTOMER”) AND NHAN LAM ACADEMY (“NLA”).   BY USING THE PROGRAM, CUSTOMER ACCEPTS THE PROGRAM AND AGREES TO THE TERMS OF THIS AGREEMENT.     READ IT CAREFULLY BEFORE USING THE PROGRAM.   BY ACCEPTING THE PROGRAM, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE PROGRAM AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.   IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND A CUSTOMER TO THESE TERMS, THEN DO NOT USE THE PROGRAM AND RETURN THE PROGRAM TO YOUR PLACE OF PURCHASE FOR A FULL REFUND IN ACCORDANCE WITH NLA’S REFUND POLICIES.

THIS EULA SHALL APPLY ONLY TO THE PROGRAM SUPPLIED BY NLA HEREWITH REGARDLESS OF WHETHER OTHER PRODUCT IS REFERRED TO OR DESCRIBED HEREIN.

  1. Definitions

(a)    “Education Version” means a version of the Program, so identified, for use by students and faculty of educational institutions, only.   

(b)    “End User Product” means a Program, which contains the NLA Program, generated by you.   Examples of End User Products include the courseware, presentations, demonstration files, interactive multimedia material, interactive entertainment products and the like.

(c)    “Not For Resale (NFR) Version” means a version, so identified, of the Program to be used to review and evaluate the Program, only.

(d)    “NLA” means Nhan Lam Academy and its licensors, if any.

(e)    “Program” means only the NLA program(s) and third-party materials, in each case, supplied by NLA herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.   Any updates to such Program which you are entitled to receive and that has been provided to you by NLA shall also mean Program for purposes of this Agreement.

(f)    “Trial Version” means a version of the Program, so identified, to be used only to review, demonstrate and evaluate the Program for a limited time period.   The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.

  1. License Grants

The licenses granted in this Section 2 are subject to the terms and conditions set forth in this EULA:

(a)   Subject to Section 2(b), you may install and use the Program for a single person, provided you have a license for each separate student.   Except as otherwise specifically provided in Section 2(b), a license for the Program may not be shared, installed or used concurrently by a separate student.  

(b)    Your license rights under this EULA are non-exclusive.   

  1. License Restrictions

(a)   Other than as set forth in Section 2, you may not make or distribute copies of the Program, or electronically transfer the Program from one student to another student.

(b)   You may not alter, merge, modify, adapt or translate the Program, or decompile, reverse engineer, disassemble, or otherwise reduce the Program to another form.

(c)   Unless otherwise provided herein, you may not rent, lease, or sublicense the Program.

(d)    Other than with respect to a Trial Version or a Not For Resale Version of the Program, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Program, and the recipient agrees to the terms of this EULA. If the copy of the Program is licensed as part of the whole Program (as defined above), the Program shall be transferred only with and as part of the sale or transfer of the whole Program, and not separately.   You may not sell or transfer any Program purchased under a volume discount.   You may not sell or transfer any Trial Version or Not For Resale Version of the Program.   If the Program is an Education Version, You may not sell or transfer any such Program to anyone except to another entity or person who is otherwise qualified to purchase Education Versions of the Program.  

(e)    Unless otherwise provided herein, you may not modify the Program or create derivative works based upon the Program.

(f)    Education Versions may not be used for, or distributed to any party for, any commercial purpose.  

(g)    Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Program, (B) download the Trial Version of the Program under more than one username, or (C) use the Trial Version of the Program for a purpose other than the sole purpose of determining whether to purchase a license to a commercial or education version of the Program; provided, however,   notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Program for any commercial training purpose.   

(h)   You may only use the Not for Resale Version of the Program to review and evaluate the Program.

(i)    You may not export the Program into any country prohibited by the United States Export Administration Act and the regulations thereunder.

(j)     You may receive the Program in more than one medium but you shall only install or use one medium.   Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Program is to be installed.

(k)    You shall not use the Program to develop any product having the same primary function as the Program.

(l) In the event that you fail to comply with this EULA, NLA may terminate the license and you must destroy all copies of the Program (with all other rights of both parties and all other provisions of this EULA surviving any such termination).

(m)   You may receive the Program in more than one language but you shall only use one language version.  

  1. Upgrades            

Except if the Program is an Education Version:

If this copy of the Program is an upgrade from an earlier version of the Program, you must possess a valid full license to a copy of an earlier version of the Program used to upgrade to this upgrade copy in order to use this upgrade copy.   You may continue to use each earlier version copy of the Program after you receive this upgrade copy, provided that, (i) the upgrade copy and the earlier version copy are used by the same student; (ii) you comply with the terms and conditions of the earlier version’s end user license agreement with respect to the use of such earlier version copy; (iii) the earlier version copy or any copies thereof are not transferred to another user unless all copies of this upgrade copy on such computer are also transferred to such other user; (iv) the earlier version copy or any copies thereof are not transferred to any other party unless you also transfer this upgrade copy and any copies thereof to such other party in accordance with Section 3;   and (v) you acknowledge and agree that any obligation NLA may have to support and/or offer support for the earlier version of the Program may be ended upon availability of the upgrade.   

If the Program is an Education Version:

If this copy of the Program is an upgrade from an earlier version of the Program, you must possess a valid full license to a copy of an earlier version of the Program used to upgrade to this upgrade copy in order to use this upgrade copy, and the upgrade copy is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Program to voluntarily terminate your earlier EULA and uninstall, destroy and cease using the earlier version of the Program or transfer it to another person or entity.  

  1.   Prior Same Version License and Exchanges

If this copy of the Program is licensed as part of the Studio (as defined above), and you have a prior license to the same version of the Program, and the Studio was licensed to you with a discount based, in whole or in part, on your prior license to the same version, the Program is provided to you on a license exchange basis.   You agree by your use of this copy of the Program to voluntarily terminate your EULA with respect to such prior license and that you will not continue to use such prior license of the Program or transfer it to another person or entity.

If this copy of the Program (“New License”) has been acquired via a permitted exchange (other than in connection with an upgrade) with a different type of Program license   previously acquired by you (“Old License”) (e.g. Education Version license for a Commercial Version license, where permitted), you must possess a valid full license to a copy of such Old License in order to install and/or use this New License, and the New License is provided to you on a license exchange basis. You agree by your installation and/or use of such copy of the New License to voluntarily terminate your earlier EULA to the Old License and uninstall, destroy and cease using the Old License.   You agree to not transfer the Old License to another person or entity.

  1. Ownership

The foregoing license gives you limited license to use the Program. NLA and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Program (as an independent work and as an underlying work serving as a basis for any application you may develop),   and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by NLA and its suppliers.

  1. LIMITED WARRANTY AND DISCLAIMER

(a)    Except with respect to any Sample Version, Trial Version and Not For Resale Version of the Program, NLA warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended schedule, the Program will perform in substantial conformance with the documentation supplied with the Program; and (ii) the physical media on which the Program is furnished will be free from defects in materials and workmanship under normal use.   

(b)    NLA PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY SAMPLE VERSION, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE PROGRAM.   ANY SAMPLE VERSION, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE PROGRAM ARE PROVIDED “AS IS”.

(c)    EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO PROGRAM OTHER THAN ANY SAMPLE VERSION, TRIAL VERSION AND NOT FOR RESALE VERSION, NLA AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. NLA DOES NOT WARRANT THAT THE PROGRAM IS ERROR-FREE. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN.

(d)    IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PROGRAM, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.

(e)   NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NLA, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.  

(f)     (USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

  1. Exclusive Remedy

Your exclusive remedy under the preceding is to return the Program to the place you acquired it, with a copy of your receipt and a description of the problem.   Provided that any non-compliance with the above warranty is reported in writing to NLA no more than ninety (90) days following delivery to you, NLA will use reasonable commercial efforts to supply you with a replacement copy of the Program that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Program, at its option. NLA shall have no responsibility if the Program has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication.   Any such misuse, accident, abuse, modification or misapplication of the Program will void the warranty above.   THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PROGRAM AND RELATED DOCUMENTATION.

  1. LIMITATION OF LIABILITY

(a)    NEITHER NLA NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE PROGRAM, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PROGRAM AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF NLA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(b)    NLA’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $200 OR THE AMOUNT PAID BY YOU FOR THE PROGRAM THAT CAUSED SUCH DAMAGE.

(c)    (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

(d)    THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.

  1. Basis of Bargain

The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between NLA and you. NLA would not be able to provide the Program on an economic basis without such limitations.   Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of NLA’s licensors.

  1. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND

This Program and the documentation are provided with “RESTRICTED RIGHTS” applicable to private and public licenses alike.   Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable.  

  1. (Outside of the USA) Consumer End Users Only

The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.

The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.  

  1.   Third Party Materials

The Program may contain third party materials which require notices and/or additional terms and conditions.  

  1. General

This EULA shall be governed by the internal laws of the Commonwealth of Virginia, without giving effect to principles of conflict of laws.   You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Prince William County, Maryland or the federal courts in the District of Maryland to resolve any disputes arising under this EULA.   In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Program licensed hereunder shall be of no effect. The failure or delay of NLA to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

No NLA dealer, agent or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of NLA.  

If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect.

All questions concerning this EULA shall be directed to: NLA, 9990 Fairfax Boulevard, Suite 110, Fairfax, Virginia 22030, Attention: General Counsel.

NLA and other trademarks contained in the Program are trademarks or registered trademarks of NLA in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners.   You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Program.   This EULA does not authorize you to use NLA’s or its licensors’ names or any of their respective trademarks.

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