Article 1 - Application area and definitions
1.1 These are the Terms and Conditions of Instruxion NV, established at the Buro & Design Center, Heysel Esplanade 1 box 20, in B-1020 Brussels, Belgium, with company number BE 0474.631.094, hereinafter called “Instruxion”.
1.2 Explania is a brand name of Instruxion NV.
1.3 The Terms and Conditions in question are applicable to all transactions that Instruxion enters into with third parties under the brand name AnimatedExplanations. They have precedence over all other Terms and Conditions from third parties, such as partners, clients or suppliers, and over Instruxion’s own general terms and conditions. Unless stipulated and defined otherwise, the third party renounces his or her general conditions.
1.4 Through the simple fact of entering into an agreement with Instruxion, the other party declares (a) to have become acquainted with these Terms and Conditions, (b) to expressly agree with them and (c) to be bound by them.
1.5 These Terms and Conditions can only be deviated from by means of explicit clauses in agreement with third parties.
1.6 Instruxion maintains the right to modify these Terms and Conditions at any time and without notice.
1.7 For these Terms and Conditions "Licensee" is defined as any person or organization, be it public, governmental or private, that makes use of the Product in any way or by any means.
1.8 For these Terms and Conditions "Product" is defined as any language version of the Instruxion courseware and its accompanying files, data, graphical objects, navigation structure and any other related materials, their accompanying user documentation ("Documentation") and other supplementary materials as provided to Licensee by Instruxion, including but not limited to any product security keys, modifications or additions relating thereto. For purposes of this License Agreement, "Product" shall also include any new releases, updates, revisions, modifications, additions and corrections of the Product. This License Agreement does not grant Licensee the right to any new releases, updates, revisions, modifications, additions, corrections and fixes of the Product.
Article 2 - User license
2.1 Instruxion grants Licensee a non-transferable, non-sub-licensable and non-exclusive license to use the Product subject to the terms and conditions set forth in this License Agreement.
2.2 Instruxion and, where applicable, Instruxion's third-party suppliers have and will retain all ownership rights to the Product, together with any complete or partial copies thereof. Such ownership rights include without limitation all patent rights, copyrights, trademarks, trade secrets, service marks, related goodwill, and confidential and proprietary information relating thereto. This License Agreement does not convey any proprietary interest to Licensee with respect to the Product other than the license specified herein. Where the Product provided under this License Agreement contains or is derived from portions of materials provided by a third-party supplier under license to Instruxion, Instruxion has assumed responsibility for the selection of such materials and their use in producing the Product and any such third-party suppliers are intended beneficiaries of this License Agreement.
2.3 Licensee agrees not to:
- Copy and distribute the Product, in whole or in part, for internal or external use without paying Instruxion the applicable additional fees unless expressly authorized by Instruxion in writing. Licensee shall reproduce and affix all copyright and other notices of proprietary rights appearing in or on the Product, including the notices of all third-party suppliers as defined below in all such copies thereof.
- Assign, sell, rent, lease, lend, sub-license or otherwise distribute, transfer or make available the Product to any third-party for commercial gain, nor authorize or appoint any third-party to do so.
- Modify the Product nor provide any person with the means to do the same.
- Create or attempt to create derivative works, translate, disassemble, decompile or reverse engineer any Product, nor permit anyone else to do so.
- Alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within the Product or Documentation.
- Use the Product in a manner other than as specifically permitted in this License Agreement.
2.4 In no event does Instruxion authorize Licensee or anyone else to use the Product in environments where the Product's failure to perform can reasonably be expected to result in a significant physical injury, or in loss of property, or in loss of life or severe physical or environmental damage. Any such use is entirely at Licensee's own risk, and Licensee agrees to hold Instruxion free of liability from any and all claims or losses relating to such unauthorized use. Instruxion and its suppliers specifically disclaim any express or implied warranty of fitness for a particular purpose and shall have no liability for any use of the Product in any high-risk situations.
2.5 For certain Products Instruxion may provide as part of the Product one (1) electronic copy of Documentation describing Instruxion's recommended use of the Product. Instruxion will furnish such Documentation with the Product free of additional charge to Licensee.
2.6 Instruxion may immediately and without notice terminate this License Agreement and Licensee's access to the Product. Termination shall be without prejudice to any other rights or remedies Instruxion may have. Instruxion will be without any obligation to compensate or refund any amounts paid by users or organizations to obtain these Licenses. In the event of any termination Licensee will have no right to keep or use the Product for any purpose and Licensee shall destroy and erase all copies of such Product in its possession or control.
Article 3 - Disclaimer of warranty
3.1 The Product and any and all accompanying software, files, data, graphical designs, navigation structures and other materials are distributed and provided "AS IS" and with no warranties of any kind, whether express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose. Instruxion does not warrant, guarantee, or make any representations regarding the use of, or the results of the use of the Product. Instruxion does not warrant that the operation of the Product will be uninterrupted due to network or internet connectivity problems or be error-free, or that the use of any access keys will be effective in preventing the unintentional disclosure of information. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED ON THE PART OF INSTRUXION AND ITS THIRD-PARTY SUPPLIERS. Licensee acknowledges that Licensee is responsible for the selection of the Product to achieve Licensee's intended results and for the installation of, use of and results obtained from the Product.
Article 4 - Limitation of liability
4.1 ANY LIABILITY OF INSTRUXION SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNTS PAID BY LICENSEE FOR THE PRODUCT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TOPICS. THE LIMITED LIABILITY DESCRIBED IN THIS SECTION ALSO APPLIES TO ANY THIRD-PARTY SUPPLIER OF LICENSEE. INSTRUXION AND ITS THIRD-PARTY SUPPLIER LIMITATIONS OF LIABILITY ARE NOT CUMULATIVE. Licensee's remedies in this License Agreement are Licensee's exclusive remedies. NEITHER INSTRUXION NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE, WHETHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST CONTRACTS, LOSS OR DISCLOSURE OF DATA OR INFORMATION, LOSS OF REVENUE, BUSINESS OPPORTUNITY OR BUSINESS ADVANTAGE, OR BUSINESS INTERRUPTION, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. Except to the extent expressly prohibited by applicable statutes, in no event shall Instruxion, or its principals, shareholders, officers, employees, affiliates, contractors, subsidiaries, or parent organizations, be liable for any indirect, incidental, consequential, special, or punitive damages whatsoever relating to the use of the Product, or to your relationship with Instruxion. NEITHER THIS LICENSE AGREEMENT NOR ANYTHING IN THIS SECTION 4 SHALL PURPORT TO EXCLUDE OR RESTRICT THE LIABILITY OF INSTRUXION OR ITS THIRD-PARTY SUPPLIERS TO ANY EXTENT NOT PERMITTED BY LAW.
Article 5 - Related services
5.1 Licensee shall be responsible for obtaining and installing all proper hardware and support software (including operating systems) and for proper registration, installation and access to the Product. In the event that Licensee retains Instruxion to perform any services with respect to the Product (for example: installation, implementation, maintenance, consulting and/or educational services), Licensee and Instruxion agree that such services shall be subject to Instruxion's standard terms, conditions and rates applicable at that time for such services unless otherwise agreed in writing by Instruxion.
5.2 The Product may contain or may require for correct use certain named third-party software programs that Licensee shall license directly from the third-party subject to such third-party's terms and conditions ("Third-Party Software"). All Third-Party Software is provided by the licensor of the Third-Party Software and solely under such third-party's terms and conditions and not by Instruxion, therefore the obligations, duties and rights of Instruxion and Licensee under this License Agreement do not apply to such Third-Party Software. Additionally, Instruxion has embedded certain run time or other elements provided by third-party suppliers to Instruxion ("Third-Party Components"). Third-Party Components are licensed to Licensee pursuant to this License Agreement. Licensee may only access Third-Party Components of the Product in the course of using the Product. Licensee may not make or attempt any direct access to any such Third-Party Components other than with the Product.
Article 6 - Miscellaneous
6.1 Instruxion shall be defined as the legal entity authorized to license the Product in the country in which Licensee acquires the Product. Instruxion may assign this License Agreement to any member of the Instruxion group of companies or to a purchaser of the intellectual property rights in the Product but otherwise neither this License Agreement nor any rights hereunder may be assigned nor duties delegated by either party, and any attempt to do so will be void.
6.2 This License Agreement is governed by the laws of Belgium. The aforesaid applicable law shall apply without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. This License Agreement shall be subject to the exclusive jurisdiction of the courts of Brussels, Belgium and Licensee consents to such jurisdiction and venue. This License Agreement is in addition expressly made subject to any United States, Belgian or European Union laws, regulations and other restrictions regarding export or re-export of e-learning courseware, computer software and technology. Licensee agrees not to export or re-export any Product or derivative thereof in contradiction to any such applicable restriction.
6.3 This License Agreement is the complete and exclusive statement of agreement between the parties relating to the license for the Product and supersedes all proposals, communications, purchase orders, and prior agreements, verbal or written, between the parties. No employee, agent, or representative of Instruxion has the authority to bind Instruxion to any oral representation or warranty concerning the Product. No representation or statement not expressly contained in this License Agreement nor any supplement, modification, or amendment of this License Agreement will be binding on either party unless executed in writing by a duly authorized representative of each party to this License Agreement.
6.4 Any waiver by Instruxion of any violation of this License by Licensee shall not constitute, nor contribute to, a waiver by Instruxion of any other or future violation by Licensee of the same provision, or any other provision, of this License.
6.5 If any part of this License or the application thereof to any person or circumstance is for any reason held invalid or unenforceable, it shall be deemed severable, and the validity of the remainder of this License, or the applications of such provision to other persons or circumstances, shall not be affected thereby.