School Designer License Agreement

Education Resource Strategies, Inc.

TERMS OF USE

THESE TERMS OF USE (“TERMS OF USE” OR THIS “AGREEMENT”) BETWEEN YOU AND EDUCATION RESOURCE STRATEGIES, INC. (“ERS”) CONTAIN THE TERMS AND CONDITIONS GOVERNING YOUR USE OF ERS’ PROPRIETARY SCHOOL DESIGNER™ TOOL (THE “TOOL”).  THE TOOL IS OWNED AND OPERATED BY ERS AND IS BEING MADE AVAILABLE TO YOU EITHER AS A USER OF THE FREE VERSION OF THE TOOL OR IN CONJUNCTION WITH ERS’S SEPARATE AGREEMENT WITH EITHER YOUR EMPLOYER OR SUCH OTHER PARTY TO WHOM YOU ARE PROVIDING CONSULTING SERVICES TO (HEREINAFTER, THE “COMPANY”).  BY CLICKING ON THE "ACCEPT" BUTTON OR OTHERWISE USING THE TOOL, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE "ACCEPT" BUTTON. 

1. License Grant.  Subject to the terms and conditions of this Agreement, ERS hereby grants to you a non-exclusive, non-transferable, revocable license to access the Tool solely for your internal use on behalf of the Company.  This license is restricted to use by you and does not include the right to use the Tool on behalf of any third party (other than the Company) or the right to permit any other person to access or use the Tool.  You are responsible for maintaining and safeguarding the security of your account, password and files and you shall not share your password or account information with any other person or allow any other person to access the Tool under your account.  ERS reserves the right to immediately suspend your access to the Tool if you fail to comply with this Agreement.  
2. Restrictions.  Unauthorized use, resale or commercial exploitation of the Tool in any way is expressly prohibited.  Without ERS’s express prior written consent in each instance, you shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Tool, access the Tool in order to build a competitive product or application or copy any ideas, features, functions or graphics of the Tool.  You shall not attempt to access any other of ERS's systems, programs or data that are not made available for public use.  You shall comply with all applicable laws, rules and regulations in your use of the Tool.
3. Ownership.  You acknowledge and agree that as between ERS and you, all right, title and interest in and to Tool (including all software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by ERS in providing the Tool and all derivatives thereof (including any and all intellectual property rights therein) are and shall remain ERS’s or its licensors’, and this Agreement in no way conveys any right or interest in the foregoing other than a limited license to use them in accordance herewith.  The ERS name, the ERS logo, and the product names associated with the Tool, including, but not limited to “School Designer”, are trademarks of ERS or third parties, and no right or license is granted to use them.  You shall not remove any ERS trademark or logo or any other proprietary notice from the Tool.  
4. Data and Content.  All text, images, documents, materials, photos, audio, video, and all other forms of data or communication (collectively “Content”) provided by ERS to you or otherwise made available to you in connection with your use of the Tool (collectively, “ERS Content”) shall be owned by ERS or its licensors. ERS grants to you a limited, non-exclusive, non-transferable, revocable, royalty-free right to use, copy, display and transmit the ERS Content solely for your internal use in connection with your use of the Tool. You shall not remove delete, or erase any copyright, trademark, or other proprietary legends, symbols, marks, or notices on the Tool or any ERS Content.  To the extent you are able to enter or upload any of your data or Content into the Tool (your “Data”) you agree that you shall not upload or otherwise transmit any Data that infringes or violates any third party intellectual property rights or that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable.  ERS does not guarantee the accuracy, integrity or quality of your Data or any other data made available to you via the Tool.  
5. Warranty Disclaimer. THE TOOL AND ALL ERS CONTENT IS PROVIDED TO YOU “AS IS”.  YOU acknowledge and agree that all warranties, whether express, implied or statutory, and all obligations and representations as to performance, including all warranties which might arise from course of dealing or custom or trade and including all implied warranties of merchantability, fitness for a particular purpose AND NON-INFRINGEMENT, are hereby expressly excluded and disclaimed by ERS.  ERS MAKES NO WARRANTY THAT THE TOOL OR ERS CONTENT WILL BE AVAILABLE TO YOU OR THAT ANY ERS CONTENT OTHER DATA MADE AVAILABLE TO YOU IN CONNECTION WITH YOUR USE OF THE TOOL WILL BE ACCURATE. 
6. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL ERS OR ANY OF ITS UNDERLYING SUPPLIERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY SHALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.  REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF ERS TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. 
7. Miscellaneous. This Agreement contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein.  Any obligation reasonably expected to survive termination or expiration of this Agreement shall survive.  This Agreement shall be interpreted according to the laws of the Commonwealth of Massachusetts without regard to or application of choice-of-law rules or principles.  Any legal action or proceeding with respect to this Agreement will be brought in the federal or state courts located in the Commonwealth of Massachusetts and you accept, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.  YOU AND ERS WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT BY EITHER ERS AGAINST YOU OR BY YOU AGAINST ERS ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT, THE RELATIONSHIP BETWEEN ERS AND YOU, YOUR USE OF THE TOOL OR ANY ERS CONTENT AND ANY CLAIM OF INJURY OR DAMAGE OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE OR REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.  No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches.  In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. This Agreement shall not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties.  Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.  

AGAIN, BY CLICKING ON THE ACCEPT BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO AGREEMENT ABOVE.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT AS SET FORTH ABOVE, DO NOT CLICK THE "ACCEPT" BUTTON AND DO NOT USE THIS TOOL.