END USER LICENSING AGREEMENT

ACCEPTANCE

You agree to accept and bound by the terms & conditions of this Agreement by opting any of the following options:

  1. clicking the “Accept” button;
  2. downloading the product/application;
  3. installing the product/application;
  4. using the application;
  5. copying the product;
  6. opening the package;
  7. any other act which would be considered as usage of the Product/Application.

If you are agree with all the terms & conditions of this Agreement then click “Accept”/download/copy/install/use/open the Product/Application. Else, if you do not agree to any/all of the terms & conditions of this Agreement, kindly click “decline” button/ do not download/copy/install/use/open the Product/Application or do not conduct any such act which will amounts to be considered as usage of the Product/Application. By downloading, installing, copying, accessing or using the Product/Application, You agree to this Agreement and in the event You are accepting this Agreement on behalf of another person or other legal entity, You represent and warrant that You have full authority to bind that person or legal entity to this Agreement.

DEFINITIONS

Agreement” means this End User License Agreement and includes the recitals, schedules, annexure or exhibits annexed.

Application/Product” means License to MePro. Pearson MePro is a feedback-based English language improvement tool.

Company” means Pearson India Education Services Pvt. Ltd., a company incorporated under the Companies Act, 1956 (CIN - U72200TN2005PTC057128), having its registered office at 4th Floor, Software Block, Elnet Software City, TS-140, Block 2 & 9, Rajiv Gandhi Salai, Taramani, Chennai- 600113 Tamil Nadu, India and corporate office at 15th floor, Tower B, ‘World Trade Tower’, Plot No. 1, Block C, Sector 16, Noida.

Confidential Information” means and includes any information disclosed by one Party to the other that is written, graphic, machine readable or other tangible form irrespective of whether the same is marked “confidential”, “proprietary” or in some other manner to indicate its confidential nature.

Notwithstanding the foregoing, the term Confidential Information does not include information that is:

  1. Becomes known to the receiving Party, without restriction, from a source other than the disclosing Party without breach by the receiving Party or otherwise in violation of the disclosing Party’s rights;
  2. Disclosed under operation of law, except that the receiving Party will disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
  3. Independently developed by the receiving Party without any use of the Confidential Information and by the employees or other agents of the receiving Party who have not been exposed to the Confidential Information, provided that the receiving Party can demonstrate such independent development with adequate evidence;
  4. Known publicly at the time it was disclosed or becomes publicly known through no fault or action of the receiving Party or any breach of any confidentiality obligation;
  5. Known to the receiving Party, without restriction, at the time of disclosure, provided the receiving Party can demonstrate such prior knowledge with adequate evidence;

End User or You” mean person using the Product/Application for the permitted use hereunder

Force Majeure Event” in respect of a Party here to shall mean any event or circumstance or combination of events and circumstances that prevents performance by a Party of its obligations under this Agreement, but only if and to the extent that such events or circumstances are not within the control and not due to fault or negligence of a Party (“Affected Party”) and could not have been prevented, avoided or overcome even if the Affected Party had taken reasonable care and shall include, without limitation, acts of God, government or military expropriation, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, exclusions, earthquakes, floods, the elements, strikes, labour disputes, shortages of labour or transportation or any causes beyond the reasonable control of such Party.

Governmental Authority” shall mean and include the Government of India, any governmental, semi-governmental, administrative, fiscal, judicial, or quasi-judicial body, board, department, commission, authority, instrumentality, tribunal, court, agency or other authority exercising powers conferred by Laws.

Intellectual Property” means all patents, copyrights, inventions, trade and service marks, brand names, software and any other intellectual properties owned by, used by, permitted to be used by or licensed by or to the Company in the course of provision of the services.

Law” means all applicable national, foreign, provincial, local or other law including all applicable provisions of all: (a) laws (including common law), bye-laws, statutes, acts of state legislature or parliament, rules, regulations, ordinances, notifications, constitutions, decrees, treaties, codes, enactments, guidelines, policies, circulars, notices, directions, directives or orders of any Governmental Authority, statutory authority, court, tribunal having jurisdiction over the parties; (b) administrative interpretation, directors, directives, injunctions, judgements, decrees, arbitral award, orders or other requirements or official directive of any Governmental Authority or person acting under the authority of any Governmental Authority and / or of any statutory authority, court, tribunal having jurisdiction over the Parties; (c) international treaties, conventions and protocols; as may be in force from time to time.

Term” shall mean the period for the license shall be valid and the End User shall be able to access the Product/Application.

GRANTING OF LICENSE AND TERM

Company has granted a non-exclusive, revocable, non-transferable license which gives limited right to install and use the Product/Application on a single device which will be used by the End User to access and use the Product/Application. Usage and access of the Product/ Application shall be in accordance with the terms and conditions of this Agreement and other related agreements (as may be determined by Pearson).

This Term of license to use the Product/Application shall be valid for the period of 6month/ 12 Memonths which ever opted by end user at the time of purchase ) from the date of activation/installation of the Product/Application and is device/machine specific to be used by the End Users. Company may terminate the license and this Agreement instantly if You breach any terms and conditions prescribed under this Agreement. Upon termination under this Clause or Clause 7 below, You must promptly return, destroy or delete permanently all copies of the Product/Application and its documentation.

This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property or ownership rights to the Product/Application to You. You acknowledge and agree that Company’s Product/Application and related documentation and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into Product/Application, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, modifications, enhancements, upgrades, policy and database updates etc. and other updates in, of, or to the Product/Application, as applicable, all derivative works based on any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of the Company, having great commercial value to the Company.

RESTRICTIONS ON USE:

End User shall use the Product/ Application as per the terms and conditions of the Agreement and of related agreements and shall not:

Transfer, sale, sub-license, rent, lease, redistribute, encumber or authorize any other user to use the Product/ Application;

Make any modification, improvement, adaptation, translation, enhancement or derivative work from the Product/Application;

Use the Product/ Application for any commercial or other purpose for which it has not been designed/ intended;

Not violate the applicable laws, rules or regulations in connection with the usage/ access of the Product/ Application;

Decompile, disassemble, decrypt or reverse engineer the Product/Application; remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices, seal or instructional label printed or stamped on, affixed to, or encoded or recorded in or on Product/Application or its documentation;

Make available/ install/use the Product/ Application on more than one device;

Except with Company’s prior written permission, publish any performance or benchmark tests or analysis relating to the Product/ Application;

Use the Product/ Application to make any other Product/ Application which is, directly or indirectly, competitive in nature in any manner to the Product/ Application, software or services offered by the Company;

Distribute the access of the Product/ Application to multiple devices;

Use the product/ Application in any manner which is not permitted under laws or to send unsolicited commercial emails or which is against the interest of company or can affect the reputation of Company in the market;

Use the Company’s Information/ Intellectual Property Rights or any other information related to Company or its employees/ affiliates/ partners in any manner without the prior written consent of the Company.; or

remove any proprietary notices or labels on the Product/Application or delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the name of the Company, any derivation thereof, or any icon, image, or text.

PAYMENT AND OTHER CHARGES

The price mentioned at the Product/ Application is the Maximum Retail Price (MRP) which is inclusive of all taxes, as applicable at that time. However, imposition of any other charges, in the coming future, by the State/ Central Government on the Product/ Application which is not inclusive in the price mentioned at the Product/ Application shall be borne by the End User and the company shall not be liable for the same. End user shall be responsible to bear any and all other charges in relation to the Product/Application.

CONFIDENTIALITY, DATA PROTECTION AND PRIVACY

End User shall agree to maintain confidentiality of all Confidential Information provided under this agreement.

End User shall be permitted to use the Confidential Information only for exercising rights granted under this Agreement. End User shall not use the Confidential Information for any other purpose without the Company’s written permission.

End User shall implement adequate security measures for maintaining secrecy of Confidential Information of Company. Such measures shall not be less than the measures taken by them to safeguard its own Confidential Information of the like nature.

End User hereby agrees that this Agreement or the contents thereof shall not be disclosed by End User to any third party without the prior written consent of the Company.

You acknowledge that the Product/Application is Confidential Information of Company. The Company (or its licensors) own exclusively and reserves all rights, title and interest in and to the Product/Application, including all Intellectual Property as well as any derivative works. You shall not exercise any right, title and interest in and to the Product/Application or any related Intellectual Property, except for the limited usage rights granted to You in this Agreement. You agree that You will take no action inconsistent with Company’s Intellectual Property Rights.

INDEMNITY AND LIMITATION OF LIABILITY

You will unconditionally indemnify, hold harmless and defend Company, its affiliates, and their officers, directors, employees, contractors and agents against any claims, liabilities and expenses (including court costs and reasonable attorney fees) that Company, its affiliates, and their officers, directors, employees, contractors and agents incur or suffer as a result of or in connection with any third-party claims arising from:

  1. failure by You to obtain any consent, authorization or license required for use of Product/Application;
  2. use by You of the Product/Application in a manner not expressly permitted by this Agreement;
  3. any violation by You of applicable Laws; and
  4. infringement or misappropriation of patent, copyright, trademark, trade secret, or other intellectual property rights of a third party due to modifications or usage by You of the Product/Application.
  5. Any material breach of this Agreement

Under no circumstances Company shall be liable to End User for any indirect, incidental or consequential damages (including loss of profit or business), howsoever arising, whether under contract, tort or otherwise, even if informed of the possibility of the same.

In no event, Company shall be liable to End User or any other Party for any loss or damage, including without limitation, for time, money, or goodwill, or for consequential or exemplary damages, which may arise from the use, operation, maintenance or other services, installation or modification of the Product/ Application or End User's inability to use the Product/ Application, in whole or part, for any other reason whatsoever, including, without limitation, by reason of defects, delays or copyright, patent or trademark infringement or for any other reason(s).

Company is providing and licensing the Product/Application to You on an “as is” without warranty of any kind, either explicit or implied, including, but not limited to, the implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose.

FORCE MAJEURE:

It is agreed between the Parties that in the event the performance by the Company is prevented, interrupted or hindered in consequence of an Force Majeure Event, the obligations of the Company under this Agreement shall be wholly or partly suspended during the continuance and to the extent of such prevention, interruption or hindrance and it shall be deemed to be breach of this Agreement and/or related agreements by the Company. If the period of prevention, interruption or hindrance exceeds 30 (thirty) days then this Agreement shall automatically stand terminated unless the Parties agree to otherwise in writing. Termination pursuant to this clause shall be without prejudice to any accrued rights or remedies of the Company (including its right to claim and recover money losses/damages and other rights and remedies, which it may have in law or contract) in respect of the exercise of rights and the obligation performed prior to or not in relation to occurrence of such Force Majeure Event.

ARBITRATION:

All disputes, differences, claims and questions whatsoever, which may arise either during the subsistence of this Agreement or afterwards between the Parties hereto and/or their respective representatives or any clause or anything contained herein or otherwise in any way relating to or arising from these presents or the interpretation of any provision contained herein shall be in the first place settled by mutual discussions between the Parties. However, if the Parties fail to settle the dispute, the same shall be referred to and settled by arbitration in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof (‘Act’) for the time being in force. The arbitration will be conducted by a sole arbitrator who shall be mutually appointed by the Parties. In case of disagreement over the appointment of the sole arbitrator, the sole arbitrator shall be appointed in accordance with the provisions of the Act. The arbitration shall be held at New Delhi and be conducted in English language. Any award made in such arbitration shall be binding on the Parties. The Parties shall bear the costs of arbitration equally.

GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by the laws of India. Nothing contained in this clause will preclude either Party from applying for and obtaining any injunctive, prohibitory or other similar urgent or interim relief from a competent court of law, for which the courts at New Delhi, shall have exclusive jurisdiction.