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09/18/2009   

QuestionPoint EULA

License Agreement

Turning Technologies, LLC ("Turning") is licensing the QuestionPoint question bank ("QuestionPoint"), including the individual assessment items therein (each, an "Assessment Item" and collectively, the "Assessment Items") to you subject to the terms and conditions of this License Agreement (this "Agreement").  By clicking on "I Agree" you are signifying your acceptance of all of the terms and conditions in this Agreement, and you represent that you are of legal age to form a binding contract.

  1. License Grant.  Subject to the terms of this Agreement, Turning grants to you, and you hereby accept, a personal, non-transferable, non-exclusive, limited license to use QuestionPoint, including the Assessment Items, solely in the United States of America in connection with educational purposes relating specifically to your classroom(s).
  2. Restrictions.  You agree not to (i) distribute or make QuestionPoint or any Assessment Items available over a network; (ii)  lend, sell, re-distribute or sublicense QuestionPoint or any Assessment Items to any third party, including, without limitation, any teacher; (iii) access QuestionPoint by any means other than through the interface that is provided by Turning; (iv) market or sell QuestionPoint or any Assessment Items for college admissions test preparation and/or high stakes state assessments or in a way that competes with the College Board's Advanced Placement and/or CLEP programs; or (v) exploit or use QuestionPoint or any Assessment Items for any commercial purposes.  Any use of QuestionPoint or any Assessment Items, except as expressly permitted by this Agreement, is a violation of the rights of Turning and its licensors. If you breach any restriction in this Agreement, you may be subject to prosecution and damages.
  3. No Assignment.  You may not assign this Agreement or any rights or obligations hereunder, and you agree that your QuestionPoint account is non-transferable.
  4. Service Level Agreement.  The Service Level Agreement posted on this Website will apply to your use of QuestionPoint.
  5. Registration; Password.  You agree to provide complete and accurate registration information ("Registration Data") and to promptly update all Registration Data so that it is at all times accurate and complete. Turning has the right to suspend or terminate your account if you provide inaccurate or incomplete Registration Data.  Registration information and other information about you is subject to our Privacy Policy at www.turning-talk.com/privacy, which is incorporated herein by this reference.  By using QuestionPoint, you consent to the collection and use of your information in accordance with our Privacy Policy.  You will receive a password and account designation upon completing the registration process.  You are responsible for maintaining the confidentiality of the password and account and for all activities that occur under your password or account.  You agree to notify Turning immediately of any unauthorized use of your password or account, or any other security breach.  You also agree to exit from your account at the end of each session.  You acknowledge and agree that Turning will not be liable for any loss arising from your failure to comply with this Section.
  6. Trademarks.  The trademarks, service marks and logos (the "Trademarks") used in connection with QuestionPoint and the Assessment Items are owned by Turning.  You agree not to display or use the Trademarks in any manner.
  7. Indemnity.  You agree to indemnify and hold Turning, its affiliates, and their officers, directors, shareholders, agents, employees, partners, members, successors, assigns and licensors harmless from any loss, claim, action, cause of action, suit, proceeding, losses, damages, demands, fees, expenses, fines, penalties, and costs (including, without limitation, reasonable attorneys' fees, costs, and disbursements) based on, arising out of or relating to (i) your use of QuestionPoint beyond the scope of the license grant in this Agreement; (ii) your alleged or actual violation of this Agreement; and/or (iii) your infringement or misappropriation of any third party intellectual property rights.
  8. Termination.  You agree that Turning may, without prior notice to you, and for any or no reason, immediately terminate this Agreement, your QuestionPoint account and/or your access to QuestionPoint. Without limiting the foregoing, your rights under this Agreement will terminate automatically without requiring notice if you fail to comply with any provision of this Agreement.  All terminations will be made in Turning's sole discretion, and Turning will not be liable to you or any third party for any termination of your account or access to QuestionPoint.  Upon any termination, you shall immediately (i) cease use of QuestionPoint and all Assessment Items, and (ii) delete all copies of all Assessment Items in your possession or otherwise under your control, on whatever medium.
  9. Disclaimer of Warranties; Limitation of Liability.
    QUESTIONPOINT AND ALL ASSESSMENT ITEMS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TURNING, ITS AFFILIATES, AND THEIR DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND  MAKE NO WARRANTY THAT QUESTIONPOINT OR ANY ASSESSMENT ITEMS WILL MEET YOUR REQUIREMENTS, THAT QUESTIONPOINT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT ANY ERRORS IN QUESTIONPOINT WILL BE CORRECTED.

    TURNING, ITS AFFILIATES, AND THEIR DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TURNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, THOSE THAT MAY RESULT FROM THE USE OR THE INABILITY TO USE QUESTIONPOINT; THE COST OF SUBSTITUTE GOODS AND/OR SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS; OR ANY OTHER MATTER RELATING TO QUESTIONPOINT OR ANY ASSESSMENT ITEMS.  IN NO EVENT WILL TURNING'S TOTAL LIABILITY FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY FOR CERTAIN DAMAGES.  THEREFORE, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

    You agree to immediately inform Turning in writing of any claims arising from your possession or use of QuestionPoint or any Assessment Items, including, but not limited to, third party infringement claims, or claims of failure to conform to any applicable legal or regulatory requirement. 

  10. Miscellaneous.  This Agreement constitutes the entire agreement between you and Turning regarding its subject matter.  It governs your use of QuestionPoint and all Assessment Items, and supersedes any prior or contemporaneous understandings or agreements between you and Turning relating to QuestionPoint and all Assessment Items.  This Agreement may not be modified unless such modification is in writing and signed by an authorized officer of Turning.  This Agreement and the relationship between you and Turning will be governed by, construed and enforced in accordance with the laws of the State of Ohio, without regard to its conflict of law provisions, and you agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Mahoning, Ohio.  However Turning may, in its sole election, have full recourse to the courts and civil, criminal and administrative laws of any jurisdiction to protect its owned or licensed intellectual property without any limitation whatsoever.  The failure of Turning to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is found to be invalid and/or unenforceable, the parties agree to give effect to the parties' intentions as reflected in the provision, and furthermore, the other provisions of the Agreement will remain in full force and effect.   This Agreement will not prejudice the statutory rights of any party.  The headings in the Agreement are for convenience only and have no legal or contractual effect.    
  11. Contact Us.  Please report any violations of the Agreement to our Customer Service group at 1-866-746-3015.  Please direct any questions, complaints or claims regarding QuestionPoint to QuestionPoint Customer Service, 255 West Federal Street, Youngstown, OH 44503, or [email protected]

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