GRANT: In consideration of Licensee's agreement to the terms hereof, including payment of the
license fee set forth in Schedule A, Scholastic hereby grants to
Licensee the nonexclusive, nontransferable right to access and use the
Licensed Content during the Term solely in strict accordance with the terms hereof.
All rights not expressly granted herein are reserved to Scholastic.
TERM: The term of this Agreement shall be for one year or for a period as set forth in
Schedule A. Renewals shall be as agreed in writing.
LICENSE FEE: In consideration of the rights granted hereunder, Licensee shall pay to
Scholastic the license fee(s) in the amount(s) and on the payment terms as set
forth in Schedule A.
CONDITIONS OF USE: The Licensed Content contains copyrighted and other proprietary materials.
Licensee shall not reproduce the Licensed Content in whole or in part by any means without
the express prior written consent of Scholastic, provided, however, that
certain Databases within the Licensed Content may provide the ability to save and print portions
thereof for the personal, noncommercial use of the Licensee, preserving all copyright notices
embedded within those portions.
Remote access is permitted under the terms of this Agreement to authorized members of the user
community of the Licensee, solely as may be specified in Schedule A.
Access to the Licensed Content may not be transferred to users outside of the user community of Licensee or used in connection with a third-party
institution (i.e., if Individual A has access to the Licensed Content as a user at a public library, Individual A may NOT access the Licensed Content from a school, unless that school is also a Licensee of the Licensed Content). Remote access is not permitted from any public or private third-party educational facility (school or library institution other than those of the Licensee).
AUTHORIZED USE: The license granted hereunder for the Licensed Content is for the unlimited
use of the user community defined in Schedule A. Licensee represents and warrants that the
user population and site data provided in Schedule A are true and accurate representations of same.
Licensee shall take all reasonable security measures to prevent unauthorized access to the
Licensed Content as established and maintained by Licensee. At all times hereunder, Licensee shall
remain liable for ensuring that all authorized use shall be in compliance with the terms of this
Agreement. Licensee shall not sublicense, lease, rent, sell, donate, assign or transfer
the Licensed Content or the rights granted hereunder or make copies of the Licensed Content
except as expressly authorized hereunder.
CONTENT AND COPYRIGHT: Licensee acknowledges and agrees that all copyrights,
trade secrets, patents and other intellectual property rights in and to the Licensed Content
are and shall remain vested in Scholastic and its designees.
Licensee shall not modify, publish, transmit, participate in the transfer or sale of,
reproduce (except as provided in 4 hereof), create new works from, distribute, perform, display
or in any way exploit, any of the Licensed Content in whole or in part.
FERPA AND OTHER CONSENTS: The Family Educational Rights and Privacy Act (20 U.S.C. Sec. 1232(g)) and the regulations thereunder (34 CFR Part 99) (collectively, "FERPA") impose obligations and restrictions onto "educational institutions or agencies" (such as Licensee), including, without limitation, with respect to the handling and disclosure of personally identifiable information contained in the educational records Licensee maintains regarding its students, with respect to any data that may be accessed, obtained, received, extracted or otherwise used by Scholastic (or which may be disclosed in any manner to Scholastic by or on behalf of Licensee), in individualized or aggregate form, in connection with Licensee's use of the Licensed Content, in whole or in part, pursuant to this License Agreement, as well as any services provided by Scholastic in connection with the Licensed Content, Licensee hereby: (1) acknowledges and agrees that Scholastic can rely, is relying and will continue to rely on Licensee's full compliance with the applicable obligations imposed by FERPA, as any such obligations may be amended or modified from time to time; and (2) expressly waives and releases Scholastic from and against any and all claims, actions, damages and liability arising in connection with Scholastic's access to, receipt of or use of such data.
Licensee acknowledges and represents that it has obtained any and all parental consents necessary to use and store student information on any website provided by Scholastic (including without limitation the Site (as defined below)). Scholastic shall have no responsibility or liability with respect to such usage and storage.
PASSWORDS: Licensee agrees to accept all responsibility for all activities that occur under Licensee's or Licensee's authorized employee's user name or password. Licensee agrees not to sell, transfer or assign its account or allow others to use it. Licensee agrees to immediately notify Scholastic of any unauthorized use of any password or account assigned to Licensee or any other breach of security or confidentiality thereof, and in such event Scholastic shall have the right, without limitation of any other rights under this License Agreement, at law or in equity, to terminate any such account or this License Agreement in its entirety.
LIMITATION OF LIABILITY/DISCLAIMER:
THE LICENSED CONTENT IS LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND. SCHOLASTIC AND ITS AFFILIATE AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES FOR INFORMATION DATA, DATA PROCESSING SERVICES, DATA OR CONTENT MAINTENANCE OR STORAGE, UPTIME OR UNINTERRUPTED ACCESS, OR ANY WARRANTY OF ACCURACY, TIMELINESS, THOROUGHNESS, COMPLETENESS, USE OR APPLICATION, ADEQUACY AND SUITABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, QUALITY, OR PERFORMANCE. SCHOLASTIC DOES NOT WARRANT THAT ANY FUNCTIONS CONTAINED IN THE LICENSED CONTENT ARE ERROR FREE OR THAT DEFECTS IN THE LICENSED CONTENT WILL BE CORRECTED. THE LICENSEE SHALL BEAR THE ENTIRE RISK RELATING TO QUALITY, PERFORMANCE AND SUITABILITY OF THE LICENSED CONTENT. SCHOLASTIC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSED CONTENT IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY THIRD-PARTY CONTENT ACCESSED THROUGH HYPERTEXT LINKS IN THE LICENSED CONTENT. SCHOLASTIC EXPRESSLY DISCLAIMS ANY ENDORSEMENT OF, RESPONSIBILITY FOR, OR RELATIONSHIP OF ANY KIND WITH ANY THIRD-PARTY SITES ACCESSIBLE THROUGH HYPERTEXT LINKS. NO ADVICE BY SCHOLASTIC OR A SCHOLASTIC-AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
SCHOLASTIC'S CUMULATIVE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT SHALL NOT EXCEED THE LICENSE FEE PAID TO SCHOLASTIC FOR THE USE OF THE LICENSED CONTENT. IN NO EVENT SHALL SCHOLASTIC, NOR ANY OF ITS SUBSIDIARIES, DIVISIONS, AFFILIATES, AGENTS, REPRESENTATIVES OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF SCHOLASTIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE PROVIDERS OF ANY THIRD PARTY SOFTWARE INCLUDED IN THE LICENSED CONTENT BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES WHATSOEVER. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE.
This Agreement is for the term stipulated in paragraph 2. Except as
specifically set forth herein, no refund or rebate of license fees paid by the Licensee
shall be made for any portion of the term in which the Licensee elects
not to use the Licensed Content.
Scholastic may terminate this Agreement for any or no reason upon
60 days written notice, in which case, all previously paid fees representing unused
portions of the term of this license shall be repaid to the Licensee.
Licensee acknowledges and agrees that the Licensed Content, including, but not limited to, any images, photographs, animations, video, audio, music, and text and user documentation are proprietary products of Scholastic, its licensors and/or the author(s) protected under United States copyright laws and international treaty provisions. Licensee further acknowledges and agrees that all right, title, and interest in and to the Licensed Content, including all rights to patents, copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights, are and shall remain with Scholastic, its licensors and/or the author(s). Licensee acknowledges and agrees that this License Agreement does not convey to Licensee any title or interest in or to the Licensed Content, but only a limited right of use revocable in accordance with the terms of this License Agreement. Licensee further agrees that it will protect the foregoing to at least the same extent as Licensee protects confidential information owned by Licensee.
TRADEMARKS. GROLIER ONLINE, BOOKFLIX, TRUEFLIX, EXPERT SPACE, FREEDOMFLIX, SCHOLASTIC, BIG DAY FOR PREK and all related logos are trademarks and/or registered trademarks of Scholastic. No right, title, license, or interest to such trademark is granted hereunder, and Licensee agrees that no such right, title, license, or interest shall be asserted by Licensee with respect to such trademark. Licensee agrees that it will not use Scholastic's or its licensors' names or marks or employee names, or adaptations thereof, in any advertising, promotional or sales literature without Scholastic's, or its licensors' prior written consent. Licensee shall inform Scholastic promptly in writing of any alleged infringement of Scholastic's or its licensors' rights and of any evidence thereof.
GOVERNING LAW: This License Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws provisions. The exclusive venue for any action relating to this License Agreement shall be the state and federal courts in New York County, New York, and each party expressly consents to the jurisdiction of such courts.
BIG DAY FOR PREK: Big Day for PreK is comprised of the following (i) print materials (the "Print Materials") and (ii) online materials (the "Site") and is licensed to Licensee on a per seat basis. Licensee is granted a perpetual, non-exclusive, limited, internal-use only, non-transferable, non-assignable, non-sublicensable, revocable license to use the Print Materials. Licensee is granted a non-exclusive, U.S., limited, internal-use only, non-transferable, non-assignable, non-sublicensable, revocable license to use the Site and the materials located thereon. Scholastic reserves the right to limit Licensee's access of the Site to the number of seat licenses purchased and to require Licensee to abide by this requirement. Scholastic has no obligation to maintain data stored in connection with any single user that has been inactive (i.e., has not logged on) for more than twenty-four (24) months. The Site (and data stored by Licensee within the Site) shall be available until August 31, 2018 or later, as determined by Scholastic in its sole discretion.
(a) Complete Agreement - This Agreement is the complete agreement between the parties with respect to its subject matter and supersedes all previous agreements and understandings, whether oral or written, between the parties. This Agreement may not be modified or amended except in a writing signed by both parties.
(b) Severability - The terms of this Agreement are severable, and the invalidity of any provision of this Agreement shall not affect the validity of any other provisions.
(c) No Waiver. The failure of either party to enforce any rights granted hereunder or take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
(d) Confidentiality - Licensee acknowledges and agrees that the terms and conditions of this Agreement
(including but not limited to pricing) shall be kept confidential at all times, and Licensee
shall not use or divulge such knowledge to any third party without Scholastic's prior written permission.
The terms of this paragraph shall survive the expiration or earlier termination of this agreement.