Central Question, Ltd. Terms Of Use Agreement For XQuestion Service and License For Resulting Software.
IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY USING THE XQuestion SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. By clicking 'Submit', you and your employer and any entity with which you may be affiliated (collectively, "You" or "Your") are consenting to be bound by this agreement ("Agreement"). If You do not agree with all of the terms of this Agreement, do not accept the Agreement and do not use the Service.
1. DEFINITIONS 
1.1. "Central Question" means Central Question, Ltd., a UK Limited Company with its principal offices located at 19 Ellis Street, Hulme, Manchester, M15-5TA. Central Question's web address is www.centralquestion.com. Central Question can also be contacted by e-mail at webinfo@centralquestion.com. 
1.2. "Service" means the transformation of Your QTI XML source documents and associated files into a SCORM Package with Flash byte code by Central Question computers accessed over the internet.
1.3. "Software" means all software provided to You by Central Question in Flash byte code, and all associated files, including, without limitation, any Documentation, in any and all versions which Central Question in its sole option elects to provide to You, unless such subsequent version(s) are governed by a different license agreement. 
1.4. "Distributor" means a dealer or distributor in the business of reselling or relicensing Your software, products or services to End Users, without modifications or enhancements, directly or through one or more Distributors, by virtue of authority granted by You. Any third party other than You who has the right to add to or modify any part of Your products, software or services shall have no rights under this Agreement without the written consent of Central Question. 
1.5. "Documentation" means the written or on-line instructions, help information, forum content, and other reference materials related to the Software, provided to You by Central Question. 
1.6. "End User" means a person or an entity receiving Your products, software or services from You or a Distributor for such person's or entity's personal or internal use and primarily not for resale, redistribution or other transfer of Your products, software or services to any other person or entity. 
2. GRANT OF LICENSE 
2.1. License Grant. Upon Your acceptance and subject to all of the terms and conditions of this Agreement, Central Question hereby grants You a non-exclusive, non-transferable, perpetual license (unless terminated as provided herein) to: 
(a) distribute the Software created by You from Your authorized use of the Service, without modification and without charge to the end-user. 
2.2. Limitations On Licenses. Except as expressly authorized in Section 2.1, You, Your Distributors and/or any person(s) acting with or for You may not: 
(a) directly or indirectly sell, lease, rent, license, sublicense, or redistribute the Software; (b) modify, translate, or create derivative works from the Software, assign or otherwise transfer rights to the Software or use the Software for timesharing or service bureau purposes; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software or any subsequent version thereof or any part thereof.
2.3. Source Code. Nothing in this Agreement grants You, Your Distributors, and/or any person(s) acting with or for You any rights, license or interest with respect to the source code of the Software. 
2.4. Software Updates. Nothing in this Agreement grants You, Your Distributors, and/or any person(s) acting with or for You the right to receive any upgrades, modifications or other enhancements to the Software at any time. 
3. OWNERSHIP/PROPRIETARY RIGHTS 
3.1. Ownership. Your rights in and to the Software are solely as set forth in Section 2, and do not include any rights of ownership. You agree that Central Question (or its suppliers) owns all right, title and interest (including, but not limited to, ideas, know-how, copyright, patent, trade secret and other intellectual property rights) to the Software, including any and all modifications, enhancements, derivative works and other alterations by any person or entity. 
3.2. Intellectual Property Rights. The Software, the structure, organization and code embodied in the Software are the valuable and confidential trade secrets of Central Question and are protected by intellectual property laws and treaties. You agree to take all reasonable measures to protect Central Question's intellectual property rights and to abide by all applicable laws. 
3.3. Copyright Notices. You agree not to remove, alter, subvert or destroy any proprietary, trademark, copyright or logo markings or notices placed upon or contained within the Software or any related materials. 
3.4. Modifications. Central Question reserves the right to modify or discontinue the Service at any time without prior notice to or consent by You. 
4. REPRESENTATIONS AND WARRANTY 
4.1. You represent and warrant that (i) You have the right to enter into this Agreement, (ii) Your use of the Service will not violate any applicable local, state, national or international law, (iii) You have the right to submit the QTI XML and related files for conversion, and (iv) You shall only represent to third parties such information and material about the Software as Central Question states in its published product descriptions, advertising and promotional materials or as may be stated in other non-confidential written material furnished by Central Question, as modified from time to time. 
5. DISCLAIMER OF WARRANTIES 
5.1. THE SOFTWARE AND SERVICE ARE PROVIDED AS IS AND CENTRAL QUESTION MAKES NO REPRESENTATIONS OR WARRANTIES (WRITTEN OR ORAL). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CENTRAL QUESTION, AND ITS SUPPLIERS AND RESELLERS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER AND TO ANY PERSON OR ENTITY, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE. NO WARRANTY IS MADE THAT ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. 
5.2. You acknowledge and agree that Central Question makes no representations or warranties to any third parties, including, but not limited to, End Users and Distributors. Any representations or warranties of any kind made to any third party are made solely by You, not Central Question. Central Question reserves the right at any time to cease the support of the Service and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Service and Software. 
6. LIMITATION OF LIABILITY 
6.1. IN NO EVENT SHALL CENTRAL QUESTION OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, SUPPLIERS OR RESELLERS BE LIABLE FOR DAMAGES TO OR THROUGH YOU, ANY END USER, OR ANY OTHER PERSON OR ENTITY FOR BREACH OF, ARISING UNDER, OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR SERVICE PROVIDED HEREUNDER, UNDER ANY THEORY INCLUDING, BUT NOT LIMITED TO, DIRECT, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR ANY OTHER LOSS) WHETHER FORESEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLEGENCE), STRICT LIABILITY OR OTHERWISE. 
6.2. IN ANY CASE, CENTRAL QUESTIONS'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF ACTUAL, PROVEN DIRECT DAMAGES OR THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR SERVICE. 
7. INDEMNIFICATION 
7.1. You agree that You shall, at Your own expense, defend, or at Your option settle, any action instituted against Central Question or its officers, directors, employees, representatives, agents, suppliers, Distributors or resellers, and pay any award or damages finally assessed against Central Question or its officers, directors, employees, representatives, agents, suppliers, Distributors or resellers or agreed to be paid by You in settlement resulting from such action, insofar as the same is based upon a claim that any of Your products, software or services or the use of any of Your products software or services either alone or in combination with any part of the Software (i) infringes or misappropriates any copyright, trade secret, or patent or any other proprietary right; (ii) violates any applicable law, statute or regulation; (iii) violates any applicable third party privacy, publicity, intellectual property or other proprietary right; or (iv) causes damages claimed by third parties, provided that Central Question gives You: (i) prompt notice in writing of such action, (ii) the right to solely control and direct the investigation, preparation, defense and settlement of the action (provided that any settlement must be approved by Central Question); and (iii) reasonable assistance and information. 
8. SUPPORT 
8.1 You may enter into a separate support agreement with Central Question by paying the applicable fees. However, Central Question shall not provide any support to Distributors and End Users and You agree that all support, if any, provided to Distributors and End Users of the Software, or Your Products, software and services shall be by You at Your expense. 
9. TERMINATION 
9.1. This Agreement (and any licenses granted herein to You or Your Distributors or End Users) will terminate immediately if You provide any false information to Central Question or if You fail to comply with the terms and conditions of this Agreement. You may terminate this Agreement at any time by notifying Central Question. Upon the termination of this Agreement, You must delete all copies of the Software from Your computer and archives. 
9.2. YOU AGREE THAT UPON TERMINATION OR YOUR BREACH OF THIS AGREEMENT FOR ANY REASON, CENTRAL QUESTION MAY TAKE ACTIONS SO THAT THE SOFTWARE NO LONGER OPERATES. 
9.3. Survival of certain terms: The following Sections shall survive any expiration or termination: 1-DEFINITIONS, 3-OWNERSHIP/PROPRIETARY RIGHTS, 6-LIMITATION OF LIABILITY, 7-INDEMNIFICATION, and 10-MISCELLANEOUS PROVISIONS and any claims or causes of action then in existence, and any payment obligations hereunder. 
10. MISCELLANEOUS PROVISIONS 
10.1. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the United Kingdom, irrespective of its choice of law principles. All disputes arising out of this Agreement shall exclusively be brought in the United Kingdom courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 
10.2. Assignability. This Agreement is personal to You and shall not be assignable by You, by operation of law or otherwise, without the prior written consent of Central Question (at Central Question's sole discretion). Central Question may assign or transfer this Agreement or any of its rights or obligations hereunder at any time. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their respective successors and permitted assigns. 
10.3. Confidential Information. You agree that the Software and any information concerning the Software, including its nature and existence, and any other information disclosed by Central Question to You, will be considered and referred to collectively in this Agreement as "Confidential Information." 
Confidential Information, however, does not include information that: (i) is now or subsequently becomes generally available to the public through no action of Yours; (ii) You can demonstrate to have had rightfully in Your possession prior to disclosure to You by Central Question; (iii) is independently developed by You without the use of any Confidential Information; or (iv) You rightfully obtain from a third party who has the right to transfer or disclose it. 
You agree not to disclose, publish, or disseminate Confidential Information to anyone other than Your employees and contractors who agree to be bound by the terms of this Agreement. All Confidential Information remains the sole property of Central Question. You agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. You agree to use Confidential Information solely for the purpose of testing the Pre-Release Service in conjunction with Your products and not for any third party's benefit without the prior written approval of Central Question in each instance. You have no implied licenses or other rights in the Confidential Information not specifically granted in this Agreement. 
When requesting and receiving technical support, You will not provide Central Question with any information that is confidential to You or any third party. Any notice, legend, or label to the contrary contained in any materials provided by You to Central Question shall be without effect. 
10.4. Other Provisions. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings between the parties regarding the subject matter hereof. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties hereto. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement. Central Question and You are independent contractors. Failure of either Central Question or You to insist on performance of any term or condition of this Agreement or to exercise any right or privilege thereunder shall not be construed as a continuing or future waiver of such term, condition, right or privilege. 
10.5 EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.