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MICHAEL & SUSAN DELL FOUNDATION
END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is a legal agreement between you (“you” or “your”) and the Michael & Susan Dell Foundation, a Texas, United States of America non-profit corporation, its affiliates (including, without limitation, subsidiaries and contractors), and each of their respective successors and assigns (collectively, “MSDF”) governing your use of (i) the Software provided to you in connection with this Agreement (the “Software”); (ii) any service developed, operated, or maintained by MSDF, or accessible via the Software or any web site or IP address designated by MSDF (the “Site”), and (iii) the content contained on the Site.
BY DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SOFTWARE OR ANY MATERIALS AVAILABLE THROUGH THE SITE, YOU ARE AGREEING THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO FOLLOW ALL APPLICABLE LAWS, DO NOT DOWNLOAD THE SOFTWARE OR ACCESS THE SITE BY TERMINATING/CANCELING THE INSTALLATION PROCESS.
Each time you use the Software and/or access the Site (i) you represent that you have been authorized to do so by MSDF or a party that has an agreement with MSDF (e.g. your employer), in accordance with the terms of such agreement; (ii) you represent that you are an employee or agent of a party described in item (i) above; (iii) you represent that you are the user assigned to use the login/user ID and password, if any, required to download the Software and/or access the Site and (iv) you agree to be bound by the terms of this Agreement.
- License Grant. Subject to the terms and conditions of this Agreement, MSDF hereby grants you a limited, non-exclusive, non-transferable, license to download the Software and to access the Site solely for the purposes authorized by MSDF. The license granted herein is expressly conditioned on your continued compliance with the terms and conditions of this Agreement.
- Restrictions on License Grant. Your use of the Software and/or Site is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Software or the Site other than as provided herein. You acknowledge that the Software and the Site constitutes valuable trade secrets and/or the confidential information of MSDF. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
- You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit, the Software or the Site or any information, documents, software, products and services contained or made available to you, including, without limitation, the Materials (as defined below), in the course of using the Software or the Site, or use the Software or the Site to run or as part of a service bureau, outsourced, or managed services arrangement;
- Your use of the Software and the Site is contingent on you accessing an account and/or inserting a login/user ID and/or password, you agree that you will be solely responsible for the login/user IDs and passwords that are used by you (as such passwords may be changed from time to time in accordance with features of the Software) to log in to the Site. You agree to keep any correspondence you receive relating to or through the use of the Software and the Site (including, but not limited to, your login/user ID, passwords, and other registration or sign-in information) confidential and in a safe place and not disclose it to any third party. You will be responsible and liable for all communications and actions that take place through the use of your login/user ID, including without limitation, any actions that occur without your authorization. Accordingly, it is your responsibility to take appropriate actions immediately if any password has been stolen, leaked, compromised or otherwise used without proper consent. You shall: (i) notify MSDF immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to MSDF immediately and use reasonable efforts to stop immediately any copying or distribution of Materials that is known or suspected by you; (iii) keep all of your profile information current;
- You shall not copy, reproduce, republish, upload, post, transmit or distribute the Software or the Site (or its related contents) in any way;
- You shall not modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Software, the Site or their related content;
- You shall not knowingly or negligently permit other individuals or entities to use or copy the Software or the Site, or create Internet “links” to the Site or “frame” or “mirror” the Site on any other server or wireless or Internet-based device;
- You shall not access the Site for any reason, including without limitation, in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software or the Site, (c) copy any ideas, features, functions or graphics of the Software or the Site, (d) monitor its availability, performance or functionality, or (e) for any other commercial or competitive purposes;
- You shall not attempt to use or gain unauthorized access to data, accounts, hosts, systems or networks of MSDF, or those of any other party; breach the security of another user or system, or attempt to circumvent the user authentication or security of any host, network, or account, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access;
- You shall not attempt to probe, scan or test the vulnerability of a system, account or network of MSDF, any MSDF product or service, or those of any other party;
- You shall not interfere, or attempt to interfere, with service to any user, host or network including, without limitation, mail-bombing, flooding, and attempting to deliberately overload the system or distribute programs that “crack,” or make unauthorized changes to, the Software or the Site;
- You shall not forge any TCP-IP packet header or any part of any header information, falsify, alter or remove address information or other modification of e-mail headers; collect responses from unsolicited bulk messages, falsify references to MSDF, the Software or the Site, by name or other identifier, in messages; impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity;
- You shall not restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Software or the Site (except for tools for safety and security functions), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information;
- You shall not restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Software or the Site or any MSDF host, server, backbone network, node or service, or otherwise cause a performance degradation to any MSDF facilities used to deliver the Software or the Site;
- You shall not create or use any program, tags, markers, bots, mousetraps, hijackers or other similar computer routines or sub-routines to automatically access or manipulate the Software or the Site; and
- Unless you and MSDF enter into a separate written agreement (in which case all such support shall be governed by the terms of such agreement), you agree that this Agreement does not obligate MSDF to provide you with support of any kind in connection with your use of the Software or the Site, and MSDF hereby expressly disclaims every such obligation, if ever any, however arising, and MSDF shall not be required to provide you with any support, corrections, repairs, translations, enhancements, updates, upgrades, new versions or other modifications, or have any other continuing obligation to you, whatsoever, regarding the Software or the Site.
- Intellectual Property Ownership. All right, title and interest in the Software and the Site, including all copyrights, patents, trade dress and other proprietary rights, and any derivative works thereof, belong solely and exclusively to MSDF, and you have no rights whatsoever in any of the foregoing. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Software or the Site, in whole or in part. All content and materials included as part of the Site, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Materials”) are the property of MSDF or its content suppliers and is protected by copyrights, trademarks, or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Materials are copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and MSDF owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Materials, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Materials, except as specifically permitted herein, is strictly prohibited.
- Trademarks. The MICHAEL & SUSAN DELL FOUNDATION & the ED-FI ALLIANCE name and other related names, design marks, product names, feature names and related logos are trademarks of MSDF (or Ed-Fi Alliance, LLC, as the case may be) and may not be used, copied or imitated, in whole or in part, without the express prior written consent of MSDF. In addition, the look and feel of the Site (including all page headers, custom graphics, button icons, and scripts) constitutes the service mark, trademark and/or trade dress of MSDF and may not be copied imitated or used, in whole or in part, without the express prior written consent of MSDF.
- Term; Termination; Suspension of Service. The term of this Agreement commences on your first use of the Software or the Site and continues through any subsequent use of the Software or the Site thereafter. Any unauthorized use of the Software or the Site will be deemed a material breach of this Agreement. MSDF, in its sole discretion, may terminate your login/user ID and/or password, account or use of the Software or the Site if you breach or otherwise fail to comply with this Agreement.
- Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND THE SITE ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MSDF, INCLUDING ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “MSDF PARTIES”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, THE SITE, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND ACCURACY AND NON-INTERFERENCE; (B) NEITHER MSDF NOR ANY MSDF PARTY WARRANTS THAT (i) THE SOFTWARE OR THE SITE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS, (ii) THE SOFTWARE OR THE SITE WILL MEET YOUR REQUIREMENTS, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR THE SITE WILL BE ACCURATE OR RELIABLE, (iv) ANY ERRORS IN THE SOFTWARE OR THE SITE WILL BE CORRECTED; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF MSDF’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) MSDF AND THE MSDF PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE FORMS, DATA, REPORTS, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SOFTWARE OR THE SITE OR OTHERWISE RELATING TO THIS AGREEMENT, AND (E) USE OF THE SOFTWARE OR THE SITE IS ENTIRELY AT YOUR OWN RISK AND NEITHER MSDF NOR ANY OF THE MSDF PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
- Interruption of Service. YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOFTWARE OR THE SITE, INCLUDING, THE PUBLIC TELEPHONE, COMPUTER NETWORKS AND THE INTERNET OR TO TRANSMIT INFORMATION, WHETHER OR NOT SUPPLIED BY YOU OR MSDF, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT THE ACCESS TO AND/OR THE USE OR OPERATION OF THE SOFTWARE OR THE SITE. NEITHER MSDF NOR ANY OF THE MSDF PARTIES SHALL BE LIABLE FOR ANY INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO AND/OR USE OF THE SOFTWARE OR THE SITE.
- Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL MSDF BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF MSDF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. MSDF SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE REMEDIES FAIL THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, YOU WOULD HAVE PAID A FEE (OR HIGHER FEE) FOR THE SOFTWARE PROVIDED HEREUNDER. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
- Local Laws and Export Control. You acknowledge that the Software and the Site, which may include technology and software, are subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of the country in which use the Software and the Site. You agree to abide by those laws and regulations. You are solely responsible for obtaining any specific licenses relating to the export of software if a license is needed. MSDF’s agreement to provide you with access to the Software and the Site is contingent upon the issuance of any applicable export license required by the United States Government.
- Modification to Terms. MSDF reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or the Site at any time, effective upon posting of an updated version of this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the Software or the Site after any such changes shall constitute your consent to such changes.
- This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement, the Software or the Site, with the exception of claims for injunctive relief, shall be subject to the exclusive jurisdiction of the state and federal courts located Austin, Texas, USA.
- If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provisions, with all other provisions remaining in full force and effect.
- No joint venture, partnership, employment, or agency relationship exists between you and MSDF as a result of this Agreement or use of the Software or the Site. The failure of MSDF to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by MSDF in writing.
- If you have not entered into another agreement with MSDF regarding the subject matter contained herein, then this Agreement comprises the entire agreement between you and MSDF and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. However, if you and MSDF have entered into another agreement regarding the subject matter set forth herein that is a written and signed agreement between you and MSDF, then this Agreement should be read and interpreted in conjunction with such agreement and, in the event of a conflict between this Agreement and a written, signed agreement between the parties, the written, signed agreement shall govern and control.