IMPORTANT – – READ CAREFULLY:
ACCESS TO AND USE OF THE SOFTWARE AND DOCUMENTATION (AS EACH TERM IS DEFINED BELOW) PROVIDED OR MADE AVAILABLE TO THE LICENSEE IDENTIFIED IN THE PURCHASE ORDER (THE “LICENSEE”) ACCEPTED BY LICENSEE AND BY FOLIOCOLLABORATIVE, INC. (THE “LICENSOR”) SHALL BE SUBJECT TO THE LICENSEE’S COMPLIANCE IN ALL RESPECTS WITH ALL TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (THIS “AGREEMENT”). THIS AGREEMENT BECAME EFFECTIVE UPON THE LICENSEE’S ACCEPTANCE OF THE PURCHASE ORDER. THIS AGREEMENT, TOGETHER WITH THE PURCHASE ORDER, CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE LICENSEE AND THE LICENSOR, AND SUPERSEDES ALL PREVIOUS COMMUNICATIONS, PRESENTATIONS, PROPOSALS OR AGREEMENTS, WHETHER WRITTEN OR ORAL, WITH RESPECT TO THE SUBJECT MATTER HEREOF.
BY ACCESSING THIS SITE, YOU REPRESENT THAT YOU ARE AN AUTHORIZED USER AND YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT.
(a) “Applicable Law” shall mean all federal, state, county and municipal laws, ordinances, regulations and orders applicable to either party’s performance under this Agreement, including, without limitation, all laws relating to the privacy of any personally identifiable information or other information or the collection of information from persons under eighteen (18) years of age, as they exist now and as they may be amended from time to time.
(b) “Authorized User(s)” shall mean all faculty and staff of the Licensee.
(c) “Confidential Information” shall mean: (i) the Software; (ii) the Documentation; (iii) the technology, ideas, know-how, documentation, processes, algorithms and trade secrets embodied in the Software; (iv) any other information, whether in written, oral or computer readable form; and (v) any material labeled “confidential,” “proprietary” or with a similar legend. Confidential Information shall not include any information which is: (a) published or otherwise available to the public other than by breach of this Agreement by Licensee; (b) rightfully received by Licensee from a third party without confidentiality limitations; (c) independently developed by Licensee as evidenced by appropriate records; (d) known to Licensee prior to its first receipt of same from Licensor as evidenced by appropriate records; (e) hereinafter disclosed by Licensor to a third party without restriction on disclosure; or (f) approved for public release by written authorization of Licensor.
(d) “Documentation” shall mean any manuals, instructions and other documents relating to the use, operation or maintenance of the Software, including the online help or end user manuals that describe the functions and operation of the Software and are furnished to Licensee by Licensor under this Agreement.
(e) “Intellectual Property Rights” shall mean all copyrights, trade secrets, trademarks, patents, mask works and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations with respect thereto.
(f) “Services” shall mean the services described in Section 4.
(g) “Software” shall mean the web based application known as Folio, a teacher/staff evaluation tool, which is managed by a web-based software tool.
1. Subject to the terms and conditions of this Agreement, Licensor grants Licensee a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Software and the Documentation solely for Licensee’s internal use during the Term. Licensee shall have no right, title, or interest in the Software or Documentation except as set forth in this Agreement.
Except as expressly permitted in this Agreement, Licensee shall not: (i) download, copy or otherwise reproduce all or any portion of the Software or the Documentation except as reasonably necessary to use the Software, as contemplated by the terms hereof; (ii) copy, frame or mirror any part or content of the Software; (iii) reverse engineer, reverse assemble or otherwise attempt to discover the source code of all or any portion of the Software; (iv) modify, translate or create derivative works of all or any portion of the Software or the Documentation; (v) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Software or the Documentation to any third party; (vi) access the Software in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Software; (vii) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (viii) use the Software to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious codes, files, scripts, agents or programs; (ix) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein; (x) attempt to gain unauthorized access to the Software or any related systems or networks; or (xi) cause or permit any third party to do any of the foregoing. Licensee’s use of the Software and Documentation is restricted to the Authorized Users and Licensee shall be liable for ensuring compliance by such Authorized Users with all terms hereof. Licensee shall not: (i) assign or transfer this Agreement or any of its rights and obligations hereunder; (ii) grant sublicenses hereunder or delegate to others any of its obligations hereunder; and (iii) permit any third parties to access or use the Software or the Documentation.
Licensor agrees to provide Licensee with the services set forth on the Purchase Order. Any modifications, improvements, derivative works or other work product integrated into or created as a module or other component of the Software that is created pursuant to this Section 4 shall become part of the Software and Licensor shall own all Intellectual Property Rights therein. At the option of the Licensee, and subject to the Licensor’s availability, the Licensor shall provide technical support services for the Software as for the fees set forth on the Purchase Order. In addition, Licensor intends to work with Licensee in good faith in order to protect and maintain the privacy, security and confidentiality of all of their respective data consistent with industry standards. In the event Licensor provides any consulting services, Licensee shall pay Licensor’s then current daily rate, in addition to travel and lodging expenses.
5. LICENSEE’S OBLIGATIONS.
Licensee shall: (i) be solely responsible for obtaining, installing, securing and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, hardware, software, networking equipment and operating systems; (ii) be solely responsible for maintaining the confidentiality and security of the accounts of all Authorized Users, including all usernames and passwords used by Authorized Users; (iii) be solely responsible for the accuracy, quality, integrity and legality of all data provided by Licensee or any Authorized User and of the means by which it acquired such data; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and Documentation, and notify Licensor promptly of any such unauthorized access or use; (v) use the Software and Documentation only in accordance with Applicable Law. Licensee is responsible for all uses of the Software by its Authorized Users or others with or without Licensee’s knowledge or consent; (vi) provide Licensor with access to Authorized Users to address reported errors or malfunctions; (vii) appoint a Folio Administrator who shall supervise, control and manage the use of the Software by the Authorized Users and others; (viii) document and promptly report to Licensor all errors or malfunctions in the Software, its access to the Software or the Documentation; and (ix) take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Licensor. All such improvements shall be the property of Licensor, subject to the limited license granted hereunder.
6. CONFIDENTIAL INFORMATION.
Licensee shall not use or disclose any Confidential Information, except as expressly authorized by this Agreement, and shall protect all such Confidential Information using the same degree of care which Licensee uses with respect to its own proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Except as expressly authorized by this Agreement, access to the Software and the Documentation shall be limited to Licensee’s Authorized Users. Licensee agrees that any breach by any Authorized User of his or her obligations under such confidentiality agreements shall also constitute a breach by Licensee hereunder. In the event that Licensee is compelled to disclose any Confidential Information in response to a valid order from a court or other governmental body, Licensee shall be allowed to make such disclosure without violation of this Agreement; provided, however, that Licensee shall promptly notify Licensor, use reasonable efforts to limit disclosure and obtain confidential treatment of or a protective order for the Confidential Information so disclosed, and provide sufficient written notice to Licensor to participate in any proceedings related thereto.
Licensor owns all right, title and interest in and to the Software and the Documentation and all Intellectual Property Rights inherent therein or arising therefrom. Nothing in this Agreement shall convey to Licensee any ownership rights in the Software, the Documentation or such Intellectual Property Rights. Licensee owns all right, title and interest in all data created by Licensee’s use of the Software.
8. FINANCIAL TERMS.
Any amounts payable by Licensee that are not paid to Licensor when due and payable shall bear interest at a rate of one and one half percent (1.5%) per month from the due date until such amount is paid or the maximum amount permitted by applicable law, whichever is lower. Licensee shall pay to or reimburse Licensor for the amount of any sales, use, excise, property or other federal, state, local or foreign taxes, duties, tariffs or other assessments (other than any tax based solely on Licensor’s income) and related interest and penalties which Licensor is at any time obligated to pay or collect in connection with or arising out of the transactions contemplated by this Agreement.
This Agreement shall be in effect for an initial term as set forth in the Purchase Order (the “Initial Term”). This Agreement and the License granted hereunder shall automatically renew for successive additional one (1) year periods (each a “Renewal Term”), unless either party provides written notice of termination not less than twenty (20) days prior to the expiration of the immediately preceding Initial Term or Renewal Term for the then current fees charged by Licensor. For purposes of this Agreement, the Initial Term together with all Renewal Terms shall be collectively referred to as the “Term”). Either party may terminate this Agreement prior to the end of the Term if the other party breaches any provision of this Agreement or fails to perform any material obligation under this Agreement and does not remedy such breach or failure within ten (10) days after receipt of written notice. Licensor may suspend access to the Software and/or terminate this Agreement, for cause, effective immediately, if Licensee or any Authorized User fails to abide by the restrictions set forth in Section 3 of this Agreement, and Licensor shall not be required to provide any refund of fees. In addition, Licensor may terminate this Agreement with or without cause with twenty (20) days prior notice, and shall return a pro rata amount of the fees to Licensee. Upon termination or expiration of this Agreement for any reason, Licensee shall immediately cease its use of the Software, and shall promptly return to Licensor all Documentation and Confidential Information of Licensor in Licensee’s possession or control. Upon termination of this Agreement, the Licensee shall discontinue all use of the Software and the Documentation. Upon the Licensee’s request within ten (10) days after termination, and subject to the Licensee’s prior payment of all amounts due and owing hereunder, the Licensor shall return to Licensee content concerning the Licensee, including stored data in any of the Licensor’s databases, in such media or formats as the Licensor may deem appropriate in its sole discretion. The following Sections of this Agreement shall survive any termination or expiration of this Agreement: 1, 3, 5, 6, 7, 10, 11 and 12.
10. WARRANTY DISCLAIMER; LIMITATIONS.
THE SERVICES, SOFTWARE AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SERVICES PERFORMED OR OPERATION OF THE SOFTWARE WILL OPERATE FREE FROM ERROR. LICENSOR DOES NOT WARRANT THAT LICENSEE’S ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. LICENSOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, LOSS OF DATA OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR DAMAGES IN ANY AMOUNT EXCEEDING THE AMOUNT OF FEES RECEIVED BY LICENSOR FROM LICENSEE DURING THE PRIOR TWELVE (12) MONTHS.
Licensee agrees to defend, indemnify and hold Licensor and its officers, employees, agents, successors and assigns harmless from any and all claims, actions, demands, losses, damages, judgments, settlements, costs, expenses (including attorneys fees and costs), and causes of action arising from any suit, claim or proceeding (collectively, “Claims), arising out of: (i) Licensee’s or its Authorized Users’ use of the Software, including, without limitation, personal injury and/or damage claims that may arise as a result of Licensee’s or any Authorized User’s use of the Software or based upon the results generated by the Software; (ii) breach by Licensee, its employees, agents or Authorized Users of any representation, warranty or covenant under this Agreement, including but not limited to those regarding breaches of privacy, security and confidentiality; (iii) negligence or intentional misconduct by Licensee; or (iv) violations of Applicable Law by Licensee, its employees, agents, or Authorized Users.
This Agreement is made and shall be governed by and construed in accordance with the laws of the State of Maryland, excluding its choice of law principles. Exclusive jurisdiction and venue of any actions connected with this Agreement shall be in the Circuit Court for Baltimore County, Maryland, if in state court, and in the District Court for the Eastern District of Maryland, if in federal court. In the event any proceeding or lawsuit is brought by Licensor or Licensee in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by Licensee will cause Licensor irreparable damage for which recovery of money damages would be inadequate, and that Licensor shall therefore be entitled to obtain timely injunctive relief to protect Licensor’s rights under this Agreement in addition to any and all remedies available at law. All notices to be provided pursuant to this Agreement shall be given in writing and shall be effective when either served by personal delivery or upon receipt via air mail, return receipt requested, postage prepaid, or sent by facsimile transmission with confirmation in writing, in each case to the party at the address listed at the end of this Agreement (or to such other address as either party may designate to the other by notice similarly given). This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto. This Agreement shall not be assignable by Licensee without the prior written consent of the Licensor, which may be withheld at its discretion. This Agreement may be assigned by the Licensor to a party reasonably capable of performing the requisite services required hereunder. Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties. Except as otherwise provided, if performance hereunder (other than payment) is disrupted because of any condition beyond a party’s reasonable control, the affected party, upon giving prompt notice to the other party, shall be excused from such performance, but only for so long as such condition persists and prevents such party from reasonable and timely performance. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement. In the event of a conflict between the general terms and conditions of this Agreement and the Purchase Order, the Purchase Order shall prevail. This Agreement (together with the Purchase Order) constitutes the entire agreement between the parties and, supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.