1. AUTHORIZED USERS; FTE STUDENTS
The Client’s Authorized Users may use the Services and the content made available as part of the Services (“Content”) for the Subscription Term set forth on the applicable Order Schedule. ”Authorized Users” are (a) every member of staff employed by or otherwise accredited by the Client, and (b) every student accredited to the Client for the purpose of full-time or part-time attendance given authority to access the Services described in (a) above.
2. FEES AND PAYMENTS
Payment terms are net-60 days from the invoice date. The Client agrees to pay all fees and charges incurred in connection with this Order Schedule and the Services, including applicable taxes, duties and similar governmental charges. NimblyWise reserves the right to change rates for the Services for any upcoming renewal term, in which case NimblyWise will notify Client at least 30 days’ prior to the renewal date. NimblyWise may immediately suspend the Client’s rights hereunder in the case of any overdue payments.
3. USAGE RIGHTS
During the Subscription Term and subject to these General Terms, NimblyWise grants the Client a limited, personal, non-exclusive, non-transferable, non-sublicensable and revocable license, solely for educational, non-commercial purposes, (a) to access and use the Services and the Content, and (b) to use and modify the Content to provide and produce learning materials Authorized Users of the Client (“Modified Content”).
4. LIMITATIONS ON USE
Except as explicitly permitted under this Order Schedule, the Client may not:
(a) systematically make printed or electronic copies of multiple entries or sections of the Content for any purpose; (b) display or distribute any part of the Content on any electronic network, including, without limitation, the Internet and the World Wide Web, other than closed sites that are only accessible with permission of the Authorized User for educational purposes; (c) use all or any part of the Services, the Content or the Modified Content for any commercial use by means of sale, resale, loan, transfer, hire, or other form of exploitation; (d) distribute or otherwise make available to any third party the whole or any part of the Services or the Content; (e) publish, distribute, or make available the Services, the Content or any Modified Content other than for educational purposes within the institution of the Client; or (f) alter, abridge, adapt, or modify the Content.Nothing in this Order Schedule shall limit the Client’s rights to make fair use of the Content pursuant to applicable law.The Client shall only permit access by Authorized Users. The Client shall ensure that all Authorized Users are appropriately notified of the restrictions contained in this Order Schedule and the importance of respecting the intellectual property rights relating to the Service and the Content. The Client shall immediately notify NimblyWise of any breach of this Order Schedule, and in such case NimblyWise shall have the right to immediately suspend the Client’s access to the Services. Any violation of this Section shall be considered a material breach of this Order Schedule.
5. INTELLECTUAL PROPERTY RIGHTS
The Client agrees that
A) all copyrights, patent rights, trademarks, services marks, trade secrets and other intellectual property rights in the Service and the Content (collectively, the “NimblyWise Intellectual Property”), are the sole and exclusive property of NimblyWise (and NimblyWise licensors), and that this Order Schedule does not convey to the Client any right, title, or interest therein except for the right to use the Service and the Content in accordance with the terms and conditions of this Order Schedule;
B) NimblyWise may use the Client’s name, logo, graphic, photo, or other marks (“Client Marks”) to customize the Content on behalf of the Client, and further use of the Client Marks and such customized Content for NimblyWise’s marketing and promotional purposes will require prior written permission from the Client; and
C) NimblyWise shall have an unlimited, irrevocable, worldwide, perpetual, royalty-free, fully-paid right to use, copy, modify, create derivative works of, and distribute content, data and other information regarding Client’s use of the Service (“Client Information”) and the Modified Content in connection with its business.
During the term of this Order Schedule, and for a period of five (5) years thereafter, each party shall keep confidential and, except as set forth herein, shall not use for any purpose any information provided to it by the other party, unless the information sought to be disclosed (a) is publicly known at the time of disclosure, (b) is lawfully received from a third party not bound in a confidential relationship with the other party, (c) is published or otherwise made known to the public by the other party, (d) was generated independently by the receiving party, or (e) is required to be disclosed under a court order. Notwithstanding, NimblyWise protects the privacy of students’ personal information and their educational records in conformance with the Family Educational Rights and Privacy Act.
7. DISCLAIMER OF WARRANTIES
THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. NIMBLYWISE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT. NIMBLYWISE DISCLAIMS ANY WARRANTIES REGARDING THE ACCURACY, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICE OR THE CONTENT. NIMBLYWISE DISCLAIMS, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SERVICES OR THE CONTENT. CLIENT UNDERSTANDS AND AGREES THAT DOWNLOADING OR OTHERWISE OBTAINING MATERIAL OR DATA THROUGH THE SERVICE IS AT CLIENT’S OWN DISCRETION AND RISK, AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGES TO ITS COMPUTER SYSTEMS OR LOSS OF DATA. Without limiting the generality of the foregoing, NimblyWise disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of the Service or the Content. NimblyWise disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information or material. NimblyWise disclaims any responsibility for any harm resulting from downloading or accessing any information or material through the Service. NimblyWise shall have no liability with respect to any Modified Content.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. CLIENT MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8. LIMITATION OF LIABILITY; INDEMNIFICATION
NIMBLYWISE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA OR LOST REVENUE), EVEN IF NIMBLYWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE OF THE SERVICE OR CONTENT OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT NIMBLYWISE IS DEEMED LIABLE IN ANY MANNER, THEN SUCH LIABILITY, WHETHER ARISING FROM CONTRACT, WARRANTY, NEGLIGENCE OR OTHERWISE SHALL, IN NO EVENT, EXCEED THE AMOUNTS PAID BY CLIENT DURING THE PRECEDING TWELVE (12) MONTH PERIOD. CLIENT FURTHER AGREES THAT NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS ORDER SCHEDULE MAY BE BROUGHT BY CLIENT AGAINST NIMBLYWISE MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH ACTION HAS OCCURRED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT.
In addition, to the extent the Client (or any Authorized User) makes any modifications to the Content in violation of the intellectual property rights of any third party or of an agreement with a third party or otherwise violates applicable law or regulation, it shall immediately notify NimblyWise in writing and remove such material. Client shall indemnify, defend and hold NimblyWise harmless in connection with any such actions, any Modified Content, or any other act or omission of Client or any Authorized User in connection with this Order Schedule.
9. TERM, TERMINATION
This Order Schedule shall commence upon NimblyWise’s receipt of a signed Order Schedule. This Order Schedule shall remain in effect for one (1) year and shall automatically renew for successive one (1) year periods, subject to the payment of all applicable fees, unless either party notifies the other in writing at least sixty (60) days prior to the upcoming anniversary date of its desire to terminate this Order Schedule effective as of the expiration of the then-current term.
In the event that the Client commit a material breach of this Order Schedule, NimblyWise may, at its election, terminate this Order Schedule, and/or exercise all rights and remedies which may be available to it in law or equity. NimblyWise may terminate this Order Schedule and the rights granted hereunder at any time. In the event that NimblyWise terminates this Order Schedule for reason other than the Client’s material breach of this Order Schedule, the Client will be refunded the pro-rata portion of any prepaid, unused fees.
Upon termination of this Order Schedule, Client’s right to use the Services and the Content shall automatically terminate.
The terms of Sections 2 and 5-9 shall survive termination or expiration of this Order Schedule.
Neither party shall be responsible for any failure to perform its obligations under this Order Schedule (other than obligations to pay money) caused by an event beyond its reasonable control, including but not limited to, wars, riots, labor strikes, natural disasters, the infrastructure of the Internet, or any law, regulation, ordinance or other act or order of any court, government or governmental agency. No modification of any provision of this Order Schedule shall be valid except by written amendment agreed to and signed by authorized representatives of NimblyWise and the Client. This Order Schedule may not be assigned by Client without the written consent of NimblyWise, and any such purported assignment shall be null and void. This Order Schedule will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its conflict of laws provisions. The Client hereby consents to the exclusive jurisdiction in the Commonwealth of Massachusetts for any disputed matters in connection with this Order Schedule. If for any reason a court of competent jurisdiction finds any provision or portion of this Order Schedule to be unenforceable, the remainder of this Order Schedule will continue in full force and effect. This Order Schedule constitutes the entire Order Schedule between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or Order Schedules, written or oral, regarding such subject matter. Any waiver of any provision of this Order Schedule will be effective only if in writing and signed by the affected party.