Vernier Graphical Analysis™ Application End User License Agreement

Vernier Software & Technology, LLC

Effective Date: April 16th, 2020

This Software End User License Agreement (“EULA”) is a binding agreement between School (“School” or “you”) and Vernier Software & Technology LLC (“Vernier,” “we,” “us,” or “our”). This EULA governs School’s use of the Vernier Graphical Analysis™ Application (including all related documentation, the “Application”). The Application is licensed, not sold, to School.

BY ACCESSING, DOWNLOADING, INSTALLING OR USING THE APPLICATION, SCHOOL ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS EULA, AND SCHOOL ACCEPTS THIS EULA. IF SCHOOL DOES NOT AGREE, DO NOT ACCESS, DOWNLOAD, INSTALL, OR USE THE APPLICATION AND DELETE IT FROM ALL DEVICES.

Nothing in this EULA shall effect an individual’s statutory consumer rights, as applicable.

  1. License Grant. Subject to the terms of this EULA, Vernier grants School a limited, non-exclusive, nontransferable non-sublicensable, revocable license to access, download, install, and use the Application within the Field of Use (defined below), pursuant to the terms of this EULA and of the subscription agreement entered into between the School and Vernier (in each case, the “Subscription Agreement”), during the Term of this EULA. School acknowledges and agrees that the Application is provided under license, and not sold, to School. Nothing in this EULA is intended to, or may be construed as, conferring by implication, estoppel or otherwise any ownership, license or other grant of right to any copyright, trademark, or other intellectual property of Vernier or any third party, except as expressly provided in this EULA. Vernier reserves all rights not expressly granted in this EULA.
  2. School District Responsibilities for End User Compliance. School will: (a) be responsible for compliance with this EULA by individual users who access, download, install or use the Application using School’s software license key (“Users”), (b) be responsible for the accuracy of School’s User count and the School’s account under School’s Subscription Agreement, and the accuracy and legality of any data, including personal information, which is input to the Application by any and all Users associated with the School, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Application, and notify Vernier promptly of any unauthorized access or use, (d) use the Application only in accordance with this EULA, application documentation, and all applicable law, and (e) comply with the terms of service of any third party software with which School uses the Application. Any use of the Application in violation of the foregoing by School or its Users that in Vernier’s judgment threatens the security, integrity or availability of the Application may result in immediate suspension of access to the Application.
  3. Field of Use. School may only use the Application for educational and non-commercial purposes on the number of devices set forth in the Subscription Agreement (the ‘Field of Use’). School agrees, represents and warrants that it and its Users will not use the Application outside of the Field of Use, including, but not limited to taking any of the following actions:
    1. download, install or use the Application on any devices on which you do not have permission to operate the Application, or on which the Application cannot be legally and rightfully operated;
    2. use the Application for commercial, industrial, medical, safety-critical, military, or weapons purposes, including, but not limited to, using the Application in, or in association with, the design, construction, maintenance, or operation of any commercial, industrial, medical, safety-critical, military or weapons process, products, service, environments or systems;
    3. use the software in connection with doing anything that is abusive, harmful, threatening, harassing, defamatory, bullying, malicious, discriminatory, deceptive, misleading, unethical, unlawful, or which violates another person’s privacy rights, or which is otherwise objectionable;
    4. modify, translate, adapt, or otherwise create derivative works or improvements of the Application;
    5. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application;
    6. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; or
    7. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any unauthorized third party.
  4. Privacy – Collection and Use of School’s and Users’ Information. School acknowledges that when the Application is downloaded, installed, or used, Vernier may collect certain information about the devices upon which the Application is installed, and/or require that the Application, and/or certain components thereof, be activated with a software license key. The Application is designed to not collect personal information of Users, however, to the extent that any personal information is collected from School or School’s Users, such as during the activation process, such collection will be done pursuant to the terms of Vernier’s Privacy Notice and Terms of Use, which are incorporated herein by reference. By downloading, installing, accessing, using, and providing information to or through this Application, School acknowledges that it has read and agrees to our Privacy Notice and Terms of Use, and School consents to all actions taken by Vernier with respect to School’s and its Users’ personal information in compliance with the Privacy Notice. Without limiting the requirements of Section 12 herein, School is solely responsible for securing any and all privacy-related rights and permissions fromUsers and other individual persons as may be required by regulation, statute, other law, Vernier’s Privacy Notice and Terms of Use, or School’s internal policies or guidelines.
  5. Content and Services. The Application may provide School or its Users with access to our website located at https://www.vernier.com/ or other websites owned or operated by us (collectively, the “Website”), products and services accessible on the Website, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). School’s and its Users’ access to and use of our Content and Services is governed by Vernier’s Privacy Notice and Terms of Use. School’s and its Users’ access to and use of our Content and Services is subject to our Terms of Use and Privacy Notice and any conditions for access Vernier may require, such as registration with the Website. Failure to comply with the Terms of Use, Privacy Notice, or conditions for access may restrict School or its Users from accessing or using certain of the Application’s features and functionality. Any violation of our Terms of Use is also a violation of this EULA.
  6. Updates. From time to time Vernier may, in our sole discretion, develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. School agrees that Vernier has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on School’s or its Users’ device settings, when a device is connected to the internet either:
    1. the Application will automatically download and install all available Updates; or
    2. the User may receive notice of or be prompted to download and install available Updates.
    3. School agrees to promptly download and install all Updates and acknowledges and agrees that the Application or portions thereof may not properly operate should School fail to do so. School further agrees that all Updates will be deemed part of the Application and be subject to all terms and conditions of this EULA.

  7. User Feedback. From time to time School may submit comments and suggestions regarding the Application to Vernier, including, without limitation, improvements, enhancements, and modifications of the Application (“Feedback”). School, on behalf of itself and its Users, hereby assigns to Vernier all right, title and interest to all such Feedback and all property rights in the Feedback, including all copyright, patent, trade secret, trademark and other intellectual property rights. School agrees not to give Vernier any Feedback that School has reason to believe is subject to any intellectual property claim or right of any third party, or subject to license terms that seek to require Vernier to license the Application to any third party.
  8. Free or Trial Subscriptions; Beta Offerings. Vernier may, in its sole discretion, make free, trial and/or beta offerings of the Application available to School. Because free, trial, or beta offerings are different from paid subscriptions, special terms apply to them.
    1. Free or Trial Subscriptions; Demonstration Versions. If Vernier makes the Application, or a demonstration version of the Application, available to School on a free or trial basis, it is so that School can use the Application before purchasing a subscription to determine if the Application meets School’s needs. Free/trial subscriptions to the Application, and any demonstration versions, are subject in all respects to the terms of this EULA, except that Vernier may discontinue the Application or School’s ability to use the Application or demonstration version at any time, with or without notice to School and without further obligations to School.
    2. Beta Versions. Vernier may make new versions of the Application available prior to their release to the general public, for testing and evaluation purposes (“Beta Versions”). Beta Versions of the Application are subject in all respects to the terms of this EULA, except that Vernier may discontinue the Application or School’s ability to use a Beta Version at any time, with or without notice to School and without further obligations to School. School agrees to notify Vernier of all comments or suggestions about the Application, including without limitation any problems and ideas for improvements, which come to School’s attention during its use of the Beta Version. By permitting School to access, download, install or use a Beta Version, Vernier does not grant any additional right to School under any copyrights, patents, trademarks or trade secret information.
  9. Third-Party Materials. The Application may comprise, include, display, link to, or otherwise access or make available third-party content (including third-party software code, data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials”). Included in these Third-Party Materials is Application’s use of the FFmpeg multimedia framework under the GNU Lesser General Public License (LGPL) version 2.1. School acknowledges and agrees that Vernier is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Vernier does not assume and will not have any liability or responsibility to School or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to School, and School and its Users access and use them entirely at their own risk and subject to such third parties’ terms and conditions. School acknowledges that it is responsible for obtaining all appropriate licenses for use of any third-party operating system or application.
  10. License Key Deactivation. Vernier reserves the right to deactivate, blacklist, disallow, cancel, or discontinue the use of any software license key if Vernier determines, in its sole discretion, that the key has been misused, or for the purpose of enforcing the terms of this EULA, the Subscription Agreement, the Privacy Notice, the Terms of Use, or for any other reason which Vernier, in its sole discretion, deems necessary to preserve its intellectual property and/or commercial rights. Vernier is not obligated to provide refunds, compensation or replacement license key(s) in any such instance.
  11. IMPORTANT NOTICE REGARDING YOUR CONSUMER RIGHTS. Nothing in this EULA is intended to or will have the effect of limiting any of your rights under the laws of your country of residence, including rights as to the quality and fitness for purpose of the Application.
  12. Compliance with Applicable Laws.School agrees to, at all times, comply with all applicable local, state, federal, and foreign laws in using the Application. Vernier makes no representation that the Application complies with legal or regulatory requirements of jurisdictions outside the United States. School acknowledges and agrees that School is solely responsible for notifying Vernier if School’s use of the Application or any component thereof or any provision of this EULA violates any law, regulation or rule of School’s locality. Use of the Application from jurisdictions where such access is illegal is prohibited. If School or any User chooses to use the Application from other jurisdictions, School does so at its own initiative and is responsible for compliance with applicable local laws. Vernier is not responsible for any violation of law in relation to School’s use of the Application.
  13. Term and Termination.
    1. Unless terminated earlier in accordance with the terms of this EULA, the Term commences when School downloads or accesses the Application and continues until School’s subscription term, as agreed to by School and Vernier in their Subscription Agreement, expires. Upon renewal of School’s subscription for the Application, this EULA shall automatically renew for the duration of the renewal subscription term unless terminated earlier in accordance with the terms of this EULA.
    2. Vernier may terminate this EULA upon thirty days’ notice to School, or at any time without notice if it ceases to support the Application, which Vernier may do in its sole discretion or if Vernier learns that School failed to comply with any of the terms and conditions of this EULA or the Subscription Agreement. In addition, this EULA will terminate immediately and automatically without any notice if School or its Users violates any of the terms and conditions of this EULA.
    3. Upon termination, all rights granted to School under this EULA will also terminate; and School must cease all use of the Application, cause all copies of the Application to be deleted or uninstalled from its Users’ devices, and return or destroy any accompanying documentation in its possession or control.
    4. Termination will not limit any of Vernier’s rights or remedies at law or in equity.
  14. Disclaimer of Warranties. THE APPLICATION IS PROVIDED ‘AS IS’ WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, VERNIER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, VERNIER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET SCHOOL’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
  15. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO SCHOOL.

  16. Limitations of Liability.
    1. Exclusion of Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VERNIER OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO SCHOOL’S OR ITS USERS’ USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, LOSS OF ANTICIPATED SAVINGS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR COMPROMISE OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
    2. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR VERNIER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND REGARDLESS OF THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTHING IN THIS EULA SHALL OPERATE TO EXCLUDE OR LIMIT VERNIER’S LIABILITY FOR FRAUD OR WILLFUL MISCONDUCT OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO SCHOOL.

    3. Cap on Monetary Liability. WITHOUT LIMITING THE FOREGOING IN ANY WAY, IN NO EVENT SHALL VERNIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS EULA, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT OF LICENSE FEES PAID TO VERNIER UNDER THIS EULA IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM ARISES. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  17. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM SCHOOL MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
  18. Waiver of Class Action. School hereby waives any right to commence or participate in any class action, collective action, private attorney general action, or other representative proceeding of any kind against Vernier related to any claim, dispute or controversy, and, where applicable, School hereby agrees to opt out of any class action, collective action, private attorney general action, or other representative proceeding against Vernier otherwise commenced.
  19. Indemnification. School agrees to indemnify, defend, and hold harmless Vernier and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to School’s or its Users’ use or misuse of the Application or School’s breach of this EULA, including, but not limited to, School or a User’s failure to comply with applicable laws, including local laws of the country or region in which the School is located or in which any User will download or use the Application.
  20. Export Regulation. School agrees to comply with all applicable laws. Without limiting the foregoing, School agrees to comply with all United States export laws, rules, and regulations, including but not limited to Export Administration Regulations, and applicable import laws of School’s locality (if School is not located in theUnited States), and School agrees not to export the Application or any component thereof without first obtaining all required authorizations or licenses. School shall be responsible for any breach of this Section 19 by School or its Users.
  21. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if School is an agency of the US Government or any contractor therefor, School receives only those rights with respect to the Application as are granted to all other end users under license, in accordance with 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
  22. Arbitration. Any controversy or claim arising out of or relating to this EULA, or the breach thereof shall be determined by final and binding arbitration administered by the International Centre for Dispute Resolution in accordance with the International ArbitrationRules. The place of arbitration shall be Portland, Oregon, United States.
  23. Governing Law. This EULA is governed by and construed in accordance with the internal laws of the State of Oregon, United States without giving effect to any choice or conflict of law provision or rule.
  24. Geographic Restrictions. The Application, Content and Services are based in the state of Oregon in the United States. School acknowledges that it may not be able to access all or some of the Application, Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. In addition to the provisions of Sections 4 and 12 herein, if School or its Users access the Application, Content and Services from outside the United States, School is responsible for compliance with local laws.
  25. Modifications to this EULA. Vernier reserves the right to modify this EULA at any time, effective upon posting.  School can tell when changes have been made to this EULA by referring to the “Effective Date” legend on top of this page.  Vernier will provide School with advance notice of a major change.  For example, Vernier may (i) require that School reaccept the updated version of this EULA, (ii) send School an electronic notification advising of the update to this EULA, or (iii) or include a notice on our Application.  Vernier does not ordinarily provide advance notice of a minor change. School’s or its Users’ continued use of the Application after this EULA has been updated (and after advance notice for a major change) indicates School’s agreement and acceptance of the updated version of this EULA.
  26. Miscellaneous Terms.
    1. Severability. If any provision of this EULA is held invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this EULA to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    2. Assignment. This EULA, and School’s rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by School without Vernier’s prior written consent. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this EULA shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    3. Relationship of the Parties. No joint venture, partnership, employment or agency relationship exists between School and Vernier as a result of this EULA or School’s/its Users’ use of the Application.
    4. Entire EULA. This EULA, the Subscription Agreement, and Vernier’s Privacy Notice and Terms of Use, constitute the entire EULA between School and Vernier with respect to the Application and supersede all prior or contemporaneous understandings and EULAs, whether written or oral, with respect to the Application.
    5. Waiver. Vernier’s failure to enforce any provision of this EULA will not be deemed a waiver of that or any other provision of this EULA.
    6. Survival. Subject to limitations under applicable law, the following provisions shall survive the expiration or termination of this EULA: Sections 1, 3, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 25.
  27. Contact Us. If School or its Users have any questions about this EULA, please write to us by mail at: 13979 SW Millikan Way, Beaverton, OR 97005, email us at info@vernier.com or call us at 1-888-837-6437.