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1.2.1 Limited License. During the Term, Customer shall have a limited, revocable and non-transferrable license to permit the Authorized Users to access and use the Curriculum solely for educational purposes only by Authorized Users. 1.2.2 Limitations on Use. Neither Customer nor any of the Authorized Users shall (i) sell, rent, lease, sublicense or otherwise transfer or distribute any copies of the Curriculum or materials or information contained therein (the "Materials") to any third parties, including but not limited to schools located within the same school district, or schools of different grade levels located within the same area (by way of illustration only, this would include a middle school serving the same school district as a high school); (ii) create derivative works (other than those permitted by the Curriculum) based upon the Curriculum or the Materials; (iii) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within the Curriculum or the Materials or (iv) use the materials for anything other than educational use. 1.2.3 Terms of Access. Customer shall and shall ensure that each Authorized User use(s) the Curriculum in accordance with the Terms of Use. Customer is solely responsible for obtaining, at its own cost and expense, the requisite software and hardware necessary to access the Curriculum (if applicable). 1.3 Payment. Customer shall pay to Turner Learning the subscription fee set forth on the application. All invoiced amounts are payable in US dollars upon receipt. Any unpaid amounts shall bear interest at the lesser of 1.5% per month or the maximum rate allowd by law. 1.4 Ownership. Turner Learning retains all of its ownership rights in and to the Curriculum, including, without limitation, all graphical designs, names, icons, interfaces and other design elements (e.g., the selection and arrangement of materials therein and the "look and feel" thereof) and any and all logos, including, but not limited to CNN and Turner Learning.
1.5.1 Exclusion of Liability. CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO THE LIMITATION ON LIABILITY PROVISIONS SET FORTH IN THE TERMS OF USE. 1.5.2 Liability Cap. NOTWITHSTANDING SECTION 1.6, THE TOTAL AGGREGATE LIABILITY OF TURNER LEARNING AND TURNER LEARNING AFFILIATES AND REPRESENTATIVES UNDER THE TERMS OF USE OR THE CURRICULUM, WHETHER FOR CLAIMS BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER FOR EACH YEAR OF THE TERM. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF TERMS OF USE. 1.5.3 Warranty Disclaimer. CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO THE WARRANTY DISCLAIMER SET FORTH IN THE TERMS OF USE. 1.6 Indemnification. Customer shall defend, indemnify and hold Turner Learning and the Turner Learning affiliates and representatives harmless from and against any and all claims, losses, damages, liabilities, obligations, judgments, causes of action, costs, charges and expenses (including, without limitation, reasonable attorneys' and consultants' fees and such fees and/or penalties as any exchanges or third party licensors may impose) arising out of: (a) any breach or alleged breach by Customer of the Terms of Use; (b) any failure of Customer to comply with the requirements of, or obligations imposed by, any third party; or (c) any negligence, or willful or reckless actions or misconduct of Customer or Customer's employees or agents, including Authorized Users. This Section shall survive any termination or expiration of the Terms of Use.
1.7.1 Term. The Term shall be as set forth in the application, not to exceed one (1) year per subscription fee. 1.7.2 Termination. Subject to Section 1.8.3, Customer shall have the right to terminate the Terms of Use and CustomerÕs use of the Curriculum at any time upon 60 days prior written notice to Turner Learning, provided that Turner Learning shall have no obligation to refund any amounts paid by Customer hereunder upon any such termination. Upon any termination of the Terms of Use, all rights in the Curriculum granted to Customer hereunder shall cease, and Customer and the Authorized Users shall immediately discontinue use of the Curriculum. 1.7.3 Survival. The terms of Sections 1.4, 1.5, and 1.6 shall survive the expiration or termination of the Terms of Use. 1.8 Relationship between Turner Learning and Custmer. The relationship between Customer and Turner Learning is that of independent contractors, and neither party is the partner, joint venturer, or agent of the other. 1.9 Assignment. Neither party shall assign or otherwise transfer the Curriculum or the Terms of Use, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without the other party's prior written consent such consent should not be reasonably withheld. 1.10 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under the Terms of Use or the Curriculum due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures. 1.11 Governing Law; Exclusive Jurisdiction. These Terms of Use are governed by the laws of the State of Georgia, excluding (i) its conflicts of laws principles; and (ii) the United Nations Convention on Contracts for the International Sale of Goods. The exclusive jurisdiction for any action relating to the Terms of Use or the Curriculum shall be either in the state courts of Georgia located in Fulton County or in the U.S. Northern District of Georgia courts - Atlanta Division, and the parties consent to such jurisdiction and waive and agree to not plead or claim that any such action is brought in an inconvenient forum. 1.12 Notices. Any written notice required or permitted to be delivered pursuant to these Terms of Use shall be in writing and shall be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier; (e) upon transmission if sent via e-mail with a telecopy sent the dame day, in each case addressed to the address listed on the cover page of the Curriculum application (or to such other address as may be specified upon notice). 1.13 Modifications and Waiver. Except as provided in the opening paragraph of these Terms of Use, any waiver or modification of these Terms of Use shall not be effective unless executed in writing and signed by an authorized representative of Turner Learning and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to these Terms of Use that are not executed by an authorized representative of Turner Learning; (b) any oral modifications to these Terms of Use; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under these Terms of Use shall not be deemed to be a waiver or modification by either party of any of its rights under these Terms of Use. 1.14 Severability. If any provision of these Terms of Use are held by a court of competent jurisdiction to be invalid or unenforceabe, in whole or in part, such holding shall not affect the validity of enforceability of the other provisions of these Terms of Use. 1.15 Time to Bring Claims. With respect to Customer, any claim arising out of or relating to these Terms of Use shall be brought within one (1) year of the date on which the claim arose or such claim shall be waived and forever barred. 1.16 Business Relationship. Customer shall not have the right to use or display the Turner Learning, CNN or CNN Student News name, likeness, trademarks, service marks, trade names or any confidential or non-confidential information or materials provided to Customer other than in accordance wth the Curriculum for educational purposes. 1.17 Entire Terms of Use. These Terms of use, along with the application, constitutes the complete and entire agreement between the parties with respect to the Curriculum and supercedes any prior or contemporaneous agreement or understandings between the parties with respect to its subject matter.
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