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End User License Agreement for CELPIP Practice Test Application

Paragon™ Testing Enterprises Inc.
End User License Agreement for CELPIP™ Practice Test Application

Last Updated: October 30, 2015.

PLEASE CAREFULLY READ THIS AGREEMENT BEFORE INSTALLING OR USING THE CELPIP™ PRACTICE TEST APPLICATION. THIS AGREEMENT IS A BINDING CONTRACT THAT GOVERNS USE OF THE CELPIP™ PRACTICE TEST APPLICATION, EXEMPTS PARAGON AND OTHER PERSONS FROM LIABILITY OR LIMITS THEIR LIABILITY, SPECIFIES THE JURISDICTION FOR RESOLUTION OF DISPUTES AND CONTAINS OTHER IMPORTANT PROVISIONS.

BY CLICKING THE “AGREE/ACCEPT” BUTTON OR INSTALLING OR USING THE CELPIP™ PRACTICE TEST APPLICATION, YOU ACKNOWLEDGE AND SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, DO NOT INSTALL OR USE THE CELPIP™ PRACTICE TEST APPLICATION. UNAUTHORIZED INSTALLATION OR USE OF THE CELPIP™ PRACTICE TEST APPLICATION OR ANY RELATED SERVICES IS STRICTLY PROHIBITED.

1.             Definitions:  In this Agreement: (a) “Licensed Application” means the mobile device software application known as CELPIP™ Practice Test Application and all related documentation provided or made available to you by or on behalf of Paragon; (b) “Mobile Device” means a mobile device that is owned or controlled by you and is compatible with the Licensed Application; (c) “Paragon Account” means a valid and subsisting account with Paragon created through Paragon’s website at www.paragontesting.ca; (d) “Paragon Services” means certain services provided by Paragon Testing Enterprises Inc. (“Paragon”); and (e) “Practice Test” means a practice version of parts of a CELPIP™ English language proficiency test that is included in or accessed through the Licensed Application.

2.             License/Permitted Uses:  Subject to the provisions of this Agreement, Paragon hereby grants to you a non-exclusive, personal, non-sublicensable, non-transferable, restricted and limited license during the term of this Agreement to download and install the object-code (machine-readable) version of the Licensed Application on a Mobile Device and to use that installed copy of the Licensed Application and the Practice Tests available in or through the Licensed Application for the sole purpose of your own personal preparation for taking a CELPIP English language proficiency test and not for any other purposes whatsoever (the “License”). The License is limited to the intellectual property rights in the Licensed Application and the Practice Tests owned by Paragon and its licensors, and does not include or relate to any other intellectual property rights.

3.             Restrictions/Prohibited Uses:  You may not: (a) use the Licensed Application or a Practice Test in any manner or for any purpose except as expressly permitted by this Agreement; (b) transfer possession of the Licensed Application or a Practice Test to any other person; (c) copy or reproduce the Licensed Application or a Practice Test, except to the extent required to install the Licensed Application in order to use the Licensed Application in accordance with this Agreement; (d) license, sublicense, sell, resell, lend, rent, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, create any interest in, or otherwise give or make available or permit access or use of the Licensed Application or a Practice Test to or for the benefit of any other person, whether with or without charge; (e) except as and only to the extent expressly permitted by this Agreement or applicable law, adapt, alter, change, enhance, modify, improve or translate the Licensed Application or a Practice Test, create derivative works from or based on the Licensed Application or a Practice Test, merge, embed or combine the Licensed Application or a Practice Test with any other software or materials, or reverse engineer, disassemble, decompile, convert into human readable format or otherwise attempt to access or derive the source code of the Licensed Application; (f) alter, attempt to circumvent, destroy, obscure, conceal, modify or remove any notices, proprietary codes or locks, means of identification, rights management information, technological protection measures or agreements on, in or in relation to the Licensed Application or a Practice Test; or (g) authorize, assist or encourage any other person to do any of the foregoing or to use the Licensed Application or a Practice Test in a way that would constitute an infringement of Paragon’s rights in the Licensed Application or the Practice Test or a breach of this Agreement if it were done by you. You will protect the Licensed Application and all Practice Tests against unauthorized access, distribution or use. Regardless of the number of copies of the Licensed Application received by you or the means by which you receive them, each copy of the Licensed Application is subject to this Agreement. You will remove the Licensed Application from the Mobile Device before you transfer ownership or control of the Mobile Device to any other person.

4.             Usage Rules:  Notwithstanding any other provision of this Agreement, you will comply with the Usage Rules, and you will ensure that your use of the Licensed Application, Practice Tests and Paragon Services complies with the Usage Rules. In this Agreement, “Usage Rules” means the restrictions, requirements and rules that govern applications downloaded through the application store through which you obtained the Licensed Application (e.g. the Apple App Store or Google Play) as set out in the terms of service and other agreements specified by the operator of the application store (e.g. Apple or Google).

5.             In-App Purchases:  The Licensed Application may permit you to purchase additional Practice Tests through the Licensed Application if you have a Paragon Account. If you do not have a Paragon Account, then you may not be able to make in-app purchases of additional Practice Tests.

6.             Paragon Services:  The Licensed Application may include functionalities that permit you to access and use certain Paragon Services (including review and scoring of your answers to Practice Tests) through the Licensed Application if you have a Paragon Account. If you do not have a Paragon Account, then the available functionality of the Licensed Application may be limited. Use of Paragon Services requires Internet access and may be subject to additional fees.

7.             Paragon Account:  To obtain a Paragon Account you must accept and agree to the terms of service and other agreements that govern use of Paragon Services (the “Terms of Service”), which are available at www.paragontesting.ca/paragon-legal-agreements-and-policies. In the Terms of Service, references to “Product” includes the Licensed Application and each Practice Test.

8.             Embedded Third Party Components:  The Licensed Application includes computer code and other materials licensed by Paragon from third parties for use as part of the Licensed Application, and your use of those items is governed by this Agreement and the applicable third party licensing terms and conditions, which are either contained or referenced in the documentation for the Licensed Application or referenced in the applicable legal notices available at www.paragontesting.ca/paragon-legal-agreements-and-policies, each of which is incorporated into and forms part of this Agreement.

9.             Technological Restrictions:  The Licensed Application may contain technologies that restrict or limit the use or functionality of the Licensed Application and may deactivate, disable or lock the Licensed Application or restrict or limit the use or functionality of the Licensed Application on a periodic basis.
10.          Licensed Application Updates/Upgrades:  Paragon is not obligated to issue updates or new versions or releases to or of the Licensed Application, but Paragon in its discretion may do so and each of those updates, versions or releases may have different features and functionalities than previous versions of the Licensed Application. This Agreement applies to each update or new version or release to or of the Licensed Application made available by Paragon unless Paragon indicates that the update or new version or release is subject to a different agreement, in which case the different agreement will govern.

11.          Technical Support:  Paragon is not obligated to provide technical support regarding the Licensed Application, but Paragon in its discretion may do so. Your use of Paragon’s technical support regarding the Licensed Application is governed by this Agreement.

12.          Technical Information/Feedback:  If you transmit or otherwise give to Paragon technical information or data regarding your use of the Licensed Application, Practice Tests, Paragon Services or your Mobile Device, or feedback (including any ideas or suggestions for corrections, enhancements or improvements) regarding any of those items, then Paragon and its successors, assigns and licensees may use the information and feedback for any and all purposes (including to support, maintain and improve the Licensed Application, Practice Tests, Paragon Services and other Paragon products and services) without providing any compensation or attribution to you or any other person.

13.          Privacy:  If you cause or permit the Licensed Application to transmit your personal information to Paragon, then you consent to Paragon’s collection, use and disclosure of that information in accordance with Paragon’s Privacy Policy, which is available at www.paragontesting.ca/paragon-legal-agreements-and-policies/privacy-policy.

14.          Technical Requirements/Legal Compliance: You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including your Mobile Device), software and services (including mobile Internet access) necessary for your use of the Licensed Application and all data used in association with the Licensed Application. You will comply with all applicable laws regarding your use of the Licensed Application.

15.          Ownership: Paragon and its licensors own and retain all right, title and interest (including copyright and other intellectual property rights), throughout the world in, to and associated with the Licensed Application and each Practice Test. The Licensed Application and each Practice Test are licensed (not sold) to you for limited purposes as expressly set out in this Agreement. The Licensed Application and each Practice Test and all related intellectual property rights are protected throughout the world by international laws and treaties. Except for the License, you will not acquire any right, title or interest in, to or associated with the Licensed Application or any Practice Test pursuant to this Agreement or otherwise. Except as required by applicable law, under no circumstances will Paragon be obligated to provide, nor will you be entitled to receive, obtain or access, any source (human readable) code for the Licensed Application. All rights not expressly granted under this Agreement are reserved to Paragon and its suppliers and licensors.

16.          Confidentiality:  You acknowledge that all non-public information concerning the Licensed Application (the “Confidential Information”) is the proprietary and confidential information of Paragon and its licensors. Both during and after the term of this Agreement, you will hold all Confidential Information in confidence, you will use the Confidential Information only in connection with your use of the Licensed Application in accordance with this Agreement and you will prevent any unauthorized use or disclosure of the Confidential Information.

17.          Termination:  This Agreement is effective until terminated. You may terminate this Agreement at any time by uninstalling the Licensed Application from each of your Mobile Devices and delivering a notice of termination to Paragon. This Agreement will terminate immediately and automatically, without any notice to or from Paragon, if you breach this Agreement. If the Licensed Application is a pre-release or early access version (a “Beta Version”), then this Agreement will automatically terminate upon expiration of the beta testing period prescribed by Paragon. Paragon in its discretion may terminate this Agreement for Paragon’s sole convenience upon seven (7) days’ notice to you. Upon termination of this Agreement, the License will immediately terminate and you will immediately cease using the Licensed Application and Practice Tests, permanently uninstall the Licensed Application from each of your Mobile Devices and permanently delete and destroy all other copies (full or partial) of the Licensed Application and all Practice Tests in your possession or control. Notwithstanding any other provision of this Agreement, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable: sections 3, 8, 12, 13, 15, 16, 17, 18, 19, 20, 21 and 22.

18.          DISCLAIMERS:
(a)           GENERAL DISCLAIMER:  YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF THE LICENSED APPLICATION, PRACTICE TESTS AND PARAGON SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND YOU INSTALL THE LICENSED APPLICATION AND USE THE LICENSED APPLICATION, PRACTICE TESTS AND PARAGON SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION, PRACTICE TESTS AND PARAGON SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO: DURABILITY; FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; NON-INFRINGEMENT OF THIRD PARTY RIGHTS; LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE; PERFORMANCE; QUALITY; RESULTS; SUITABILITY; TIMELINESS; TITLE; QUIET ENJOYMENT; OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY DISCLAIMED BY PARAGON TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, PARAGON DOES NOT REPRESENT OR WARRANT THAT THE LICENSED APPLICATION, PRACTICE TESTS OR PARAGON SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR PARAGON SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS IN THE LICENSED APPLICATION, PRACTICE TESTS OR PARAGON SERVICES WILL BE CORRECTED, OR THAT THE LICENSED APPLICATION, PRACTICE TESTS OR PARAGON SERVICES WILL BE COMPATIBLE OR OPERATE WITH ANY SPECIFIC COMPUTER OR DEVICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF PARAGON OR ANY PARAGON REPRESENTATIVE WILL CREATE ANY LEGALLY BINDING OR EFFECTIVE REPRESENTATION, WARRANTY OR PROMISE.
(b)           BETA VERSION DISCLAIMER:  IF THE LICENSED APPLICATION IS A BETA VERSION, THEN THE LICENSED APPLICATION IS STILL UNDER DEVELOPMENT AND TESTING AND MAY NOT WORK THE WAY A FINAL VERSION OF THE LICENSED APPLICATION IS INTENDED TO WORK. PARAGON RESERVES THE RIGHT TO NOT RELEASE A COMMERCIAL VERSION OF, OR TO CHANGE, ANY BETA VERSION AT ANY TIME WITHOUT NOTICE.
(c)           NO HIGH RISK USE:  THE LICENSED APPLICATION IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR SUITABLE FOR USE IN A SITUATION WHERE FAILURE OR FAULT OF ANY KIND (INCLUDING DELAYS, ERRORS OR INACCURACIES IN PERFORMANCE, CONTENT, DATA OR INFORMATION PROVIDED BY THE LICENSED APPLICATION OR PARAGON SERVICES) COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK USE”). HIGH RISK USE OF THE LICENSED APPLICATION IS STRICTLY PROHIBITED.

19.          LIABILITY EXCLUSIONS/LIMITATIONS AND INDEMNITY:
(a)           LIABILITY EXCLUSIONS/LIMITATIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL PARAGON GROUP BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE OR KIND WHATSOEVER (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS) ARISING FROM, CONNECTED WITH, OR RELATING TO THE LICENSED APPLICATION (INCLUDING YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION), PRACTICE TESTS, PARAGON SERVICES OR ANY RELATED MATTER; AND (II) IF NOTWITHSTANDING THE FOREGOING PARAGON GROUP IS LIABLE TO YOU OR ANY OTHER PERSON, THEN IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL PARAGON GROUP’S TOTAL AGGREGATE LIABILITY ARISING FROM, CONNECTED WITH, OR RELATING TO THE LICENSED APPLICATION, PRACTICE TESTS, PARAGON SERVICES OR ANY RELATED MATTER EVER EXCEED THE LESSER OF THE TOTAL AMOUNT OF FEES (IF ANY) THAT YOU ACTUALLY PAID FOR THE LICENSED APPLICATION OR THE PRACTICE TEST THAT IS THE SUBJECT OF THE CLAIM AND FIVE DOLLARS. THIS SECTION 19(a) APPLIES TO LOSS, DAMAGE AND LIABILITY HOWEVER CAUSED AND UNDER ANY THEORY OF LAW (INCLUDING CONTRACT, TORT, STRICT LIABILITY AND STATUTORY LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY OR ON BEHALF OF PARAGON OR ANY PERSON FOR WHOM PARAGON IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE YOU FOR YOUR LOSS, DAMAGE AND LIABILITY, OR THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR PARAGON KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE LOSS, DAMAGE AND LIABILITY BEING INCURRED.
(b)           EXCEPTIONS:  THE LAWS IN SOME JURISDICTIONS PROHIBIT OR LIMIT THE DISCLAIMER OF CERTAIN WARRANTIES AND CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, AND SO THE DISCLAIMERS AND LIABILITY EXCLUSIONS AND LIMITATIONS IN THIS AGREEMENT MIGHT NOT APPLY TO YOU.
(c)           INDEMNITY:  YOU WILL DEFEND, INDEMNIFY AND HOLD HARMLESS PARAGON GROUP FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING LEGAL FEES), CLAIMS, COMPLAINTS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, OBLIGATIONS AND LIABILITIES (INCLUDING LEGAL FEES AND EXPENSES AND SETTLEMENT PAYMENTS) ARISING FROM, CONNECTED WITH OR RELATING TO YOUR USE OF THE LICENSED APPLICATION, PRACTICE TESTS OR PARAGON SERVICES, OR YOUR NEGLIGENCE, MISCONDUCT OR BREACH OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, PARAGON GROUP RETAINS THE RIGHT TO PARTICIPATE, WITH COUNSEL OF THEIR OWN SELECTION AT THEIR SOLE COST AND EXPENSE, IN THE DEFENSE OF AND SETTLEMENT NEGOTIATIONS RELATING TO ANY THIRD PARTY CLAIM, COMPLAINT, DEMAND, ACTION, SUIT OR PROCEEDING.
(d)           DEFINITIONS:  IN THIS SECTION 19, “PARAGON GROUP” MEANS PARAGON AND EACH OF PARAGON’S AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PARTNERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SHAREHOLDERS, DISTRIBUTORS AND REPRESENTATIVES, JOINTLY AND SEVERALLY.

20.          Export/Import/Use Restrictions:  The Licensed Application may include items or technologies that are subject to domestic and international export, import or use restrictions or controls imposed by applicable law. You will comply with all applicable export, import and use restrictions and controls under the laws of Canada, the United States of America, the jurisdictions in which you are located when you purchase, access or use the Licensed Application and any other applicable laws in effect from time to time, and you will not export, or permit or assist the export or re-export, import or use of the Licensed Application in violation of the laws of Canada, the United States of America, the jurisdictions in which you are located or any other applicable laws, including to any prohibited or restricted country or person. You represent and warrant that: (a) you are not located in, under control of, or a national or resident of, either: (i) a country that is subject to an embargo by the governments of Canada, the United States of America or the jurisdiction in which you are located or the United Nations; or (ii) a country that has been designated as a “terrorist supporting” country by the governments of Canada, the United States of America or the jurisdiction in which you are located or the United Nations; (b) you are not listed on any list of prohibited or restricted persons issued by the governments of Canada, the United States of America or the jurisdiction in which you are located when you purchase, access or use the Licensed Application or the United Nations; and (c) your possession or use of the Licensed Application is not prohibited by any applicable law.

21.          No Government Users:  The Licensed Application, Practice Tests and Paragon Services are intended for used by individuals for their personal purposes only, and may not be licensed or used by or on behalf of any government agency.

22.          General Matters:
(a)           Governing Law:  This Agreement and all related matters will be governed by, and construed and interpreted solely in accordance with, the laws of the Province of British Columbia, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding any law that implements the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code or the Uniform Computer Information Transaction Act.
(b)           Disputes:  The courts of British Columbia, Canada sitting in the city of Vancouver, British Columbia, Canada will have original and exclusive jurisdiction over any and all disputes arising from, connected with or relating to this Agreement, the Licensed Application, Practice Tests, Paragon Services or any related matter, and you and Paragon each hereby unconditionally and irrevocably submit and attorn to the original and exclusive jurisdiction of those courts regarding those disputes.
(c)           Notices:  Paragon may deliver notices to you by email or postal mail to any of the addresses that you provide to Paragon (including when you subscribe for a Paragon Account). You are solely responsible for ensuring that your email addresses on file with Paragon are and remain current and correct throughout the term of this Agreement, and you will promptly give notice to Paragon of any change to your email addresses. You will give all notices under this Agreement to Paragon in writing delivered by email to Paragon at the following email address: info@paragontesting.ca.
(d)           Enforcement:  You acknowledge and agree that your breach of any of sections 3, 4, 8, 16, 17 and 20 of this Agreement will result in irreparable harm, loss and damage to Paragon and its licensors and affiliates for which Paragon and its licensors and affiliates could not be adequately compensated by an award of monetary damages; and if you breach or threaten to breach any of those sections, then Paragon will be entitled as a matter of right to judicial relief by way of a restraining order, interim, interlocutory or permanent injunction, or order for specific performance, and you will not oppose the granting of that judicial relief and hereby waive all defences to the strict enforcement of this Agreement.
(e)           Miscellaneous:  No consent or waiver by Paragon to or of any breach of this Agreement by you will be effective unless in writing and signed by Paragon or will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach by you. Paragon’s rights and remedies under this Agreement are cumulative and not exhaustive or exclusive of any other rights or remedies to which Paragon may be lawfully entitled under this Agreement or at law, and Paragon will be entitled to pursue any and all of its rights and remedies concurrently, consecutively and alternatively. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. You may not assign this Agreement or any of your rights (including the License) or obligations under this Agreement. Paragon in its discretion may assign this Agreement or any of Paragon’s rights and obligations under this Agreement. The provisions of this Agreement will enure to the benefit of and be binding upon you and Paragon and your respective successors, permitted assigns and personal representatives.
(f)            Interpretation:  In this Agreement: (i) “this Agreement” and similar terms refer to this End User License Agreement for CELPIP™ Practice Test Application as a whole, and not just to the particular provision in which those words appear; (ii) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (iii) words importing the singular number only include the plural and vice versa; (iv) words importing a gender include all genders; (v) “person” includes an individual (natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (vi) “including” and “includes” mean including or includes (as applicable) without limitation or restriction; (vii) “law” includes common law, equity, statutes and regulations, and a reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation made under the law in force from time to time; and (viii) “discretion” means a person’s sole, absolute and unfettered discretion. If there is a conflict or inconsistency between this Agreement and the Terms of Service, then this Agreement will take priority and govern regarding the Licensed Application and Practice Tests and the Terms of Service will take priority and govern regarding the Paragon Services and other matters.
(g)           Complete Agreement/Governing Language:  This Agreement and the Terms of Service together set out the entire agreement between you and Paragon regarding the subject matter of this Agreement, and supersede all prior or contemporaneous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of this Agreement. This Agreement may not be modified, except by a written agreement that expressly states that it is an amendment to this Agreement and is signed by Paragon. You and Paragon have expressly requested and required that this Agreement and all related documents be drawn up in the English language. Subject to applicable law, any translation of this Agreement provided by Paragon is for convenience only, and if there is a conflict or inconsistency between the English version and a non-English version then the English version of this Agreement will take priority and govern.
(h)           Contact Information:  Paragon’s address is 110-2925 Virtual Way, Vancouver, British Columbia, Canada, V5M 4X5. If you have any questions or complaints regarding the Licensed Application, you may contact Paragon’s support services staff at 778.327.6854 and info@paragontesting.ca.

23.          Apple:
(a)           General:  This Agreement is between you and Paragon only. Apple is not a party to this Agreement. Paragon, not Apple, is solely responsible for the Licensed Application and the content of the Licensed Application. Apple has no obligation to provide any maintenance or support services with respect to the Licensed Application.
(b)           Remedies for Warranty Breach:  If the Licensed Application fails to conform to any applicable warranty (if any) set out in this Agreement or implied by applicable law, then you may notify Apple and Apple will refund the purchase price (of any) that you paid for the Licensed Application, and to the maximum extent permitted by applicable law Apple will have no other warranty obligation whatsoever with respect to the License Application, and subject to the provisions of this Agreement any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Licensed Application to conform to any applicable warranty (if any) will be Paragon’s sole responsibility.
(c)           Product Claims:  Paragon, not Apple, is responsible for addressing any claims by you or any other person relating to the Licensed Application or your possession or use of the Licensed Application, including: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(d)           Intellectual Property Rights:  If there is a third party claim that the Licensed Application or your possession and use of the Licensed Application infringes that third party’s intellectual property rights, then subject to the provisions of this Agreement Paragon, not Apple, will be responsible for the investigation, defence, settlement and discharge of the claim.
(e)           Third Party Beneficiary:  Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement Apple will have the right (and will be deemed to  have accepted the right), as a third party beneficiary of this Agreement, to enforce this Agreement against you.