THIS WAYPOINT INSTRUCTOR LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND WAYPOINT OUTCOMES, LLC ("Waypoint") STATING THE TERMS THAT GOVERN YOUR USE OF THE SERVICES WAYPOINT PROVIDES. BY SELECTING 'YES' AND AGREEING TO THIS EULA OR USING THE SERVICE, YOU AGREE TO ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT CHOOSE 'YES" AND DO NOT USE THE SERVICE.
1.1 "Authorized User" means a Faculty User or a Student/Reviewer User.
1.2 "Competency" means a Licensee defined educational competency to which an element of an evaluation, survey, self-assessment or peer review may be assigned.
1.3 "Data" means all data, information, or other materials of any nature whatsoever, entered or submitted through the Service, or generated using the Service, by Licensee or an Authorized User.
1.4 "Documentation" means the documentation, user guides, manuals, operating procedures, and any other documents provided to Licensee for use of the Service, including all support documentation available through Waypoint's web site, as may be amended from time to time.
1.5 "Faculty User" means a specific faculty member, teaching assistant, tutor, or similar employee of Organization who has been assigned a login and password for the purpose of using the Service as contemplated by this Agreement.
1.6 "Feedback Record" means a specific evaluation, survey, self-assessment, or peer review submitted by an Authorized User using the Service.
1.7 "Minimum Requirements" means Operating System: Mac OS X, Windows 2000/XP/Vista, Linux; Browsers: Firefox 3.0+ (preferred), but Safari 3.0, Internet Explorer 7.0+ also supported; Security: Turn off pop up blocking for the address: http://subjectivemetrics.com ; Toolbars: Disable Earthlink, Yahoo and other toolbars if Licensee is experiencing unpredictable behavior; Google's toolbar is allowed; and Speed: A minimum of Pentium III 500 MHz (Windows) or Apple G3 processor; Memory: A minimum of 256MB RAM.
1.8 "Organization" means the specific university, school, or other academic organization where Licensee is employed or otherwise affiliated.
1.9 "Public Libraries" means Waypoint's proprietary libraries of rubrics, assignments, criteria and elements that are accessed within the Service for the purpose of designing Feedback Records.
1.10 "Service" means Waypoint's online application for teaching and assessment provided to Licensee pursuant to this Agreement, comprised of the Software, Documentation, and Public Libraries.
1.11 "Software" means the proprietary software programs, components and modules made available to Licensee by Waypoint under this Agreement and all Updates and Upgrades made available to Licensee by Waypoint from time to time, including, for example, one or all of the following programs: Waypoint Outcomes, an Internet based service for feedback to students and assessment of student performance; Course Management Integration Software, Waypoint's software for integrating Waypoint Outcomes with Blackboard Learn (v7.3 – 9.x), Blackboard CE6/CE8/Vista, or Moodle (v1.8 – 1.9.x); Waypoint Surveys, a module to Waypoint Outcomes to deploy course evaluations; or WpOutcomes, PC-based software to analyze and report student performance data generated by Authorized Users.
1.12 "Student/Reviewer User" means a specific enrolled student at the Organization who has been assigned a login and password in order to receive feedback via the Service or to use the Service to create feedback via a review process as contemplated by this Agreement.
1.13 "Update" means any changes made to the Software to maintain compatibility with any operating environment or systems, to improve existing features and operations, or to fix bugs and errors, and that are made generally available to all licensees of the Software at no extra charge. Updates will not include any Upgrades or release, module, option or future product that Waypoint separately licenses for a separate fee.
1.14 "Upgrade" means any additions, modifications, or enhancements to the Software that add new features or functionality, that do not constitute solely an Update, and for which Waypoint may require an additional fee, in its sole discretion. Waypoint reserves the right to define which changes are Updates or separately priced Upgrades.
2 GRANT OF LICENSE
2.1 License Grants to Licensee. Subject to the terms of this Agreement, Waypoint hereby grants to Licensee, under Waypoint's rights in and to the Service a non-exclusive, non-transferable, non-sublicenseable (except as provided in Section 2.2) license, during the Term, to: (a) use and access the Service solely for Licensee's internal academic and administrative purposes, including adult education, community outreach programs and online education, provided or controlled by Licensee in accordance with the Documentation; and (b) access and use the Public Libraries in order to create original rubrics, assignments, criteria and elements ("Licensee-Created Libraries").
2.2 Sublicensing. Subject to the terms of this Agreement, Waypoint hereby grants Licensee the right to sublicense the license set forth in Section 2.1, solely to its Authorized Users, through (a) logins consisting of usernames and passwords created and maintained by Licensee and/or (b) via integrations with Licensee's or Organization's course management systems software that has been approved in advance by Waypoint. Licensee shall remain responsible for its Authorized Users' compliance with the terms of this Agreement. Licensee will inform its Authorized Users of this Agreement, will cause its Authorized Users to adhere to the terms of this Agreement, and will be responsible for any breach of this Agreement by any of its Authorized Users.
2.3 Authorized Users. The number of Authorized Users is limited to one (1) Faculty User and an unlimited number of Student/Reviewer users.
2.4 Licensee Data. Subject to the terms and conditions of this Agreement, Licensee grants Waypoint the non-exclusive, non-transferable license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Data only to the extent necessary to provide the Service to Licensee and for such other purposes identified herein. Licensee agrees that the license to Data shall survive the termination of this Agreement.
(a) Licensee acknowledges and agrees that it shall not (and shall not allow any third party to): (i) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise; (ii) attempt to discover any source code; (iii) modify the Service in any manner or form, or use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; (iv) sell, resell, license, rent, lease, lend or otherwise transfer access to the Service to any third party, except as permitted with respect to its Authorized Users as set forth herein; (v) create obscene, defamatory or other works that would violate any applicable law, using the Service; (vi) attempt to gain access to any service, account, computer systems or networks associated with the Service except with the prior written authorization of Waypoint, including, without limitation, allow unauthorized users to use any usernames or passwords to access, view, use, or gain access to the Service or any of its administrative tools; (vii) use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any third party's use of the Service; (viii) upload any content owned by any third party onto or with the Service without the consent of such third party; or (ix) take any action that would create obligations that would conflict with Licensee's obligations hereunder, including without limitation, creating modifications to the Service that contain code licensed under an Open Source License (as defined below), or using the Service to merge with, link to, make function calls to, or share data structures with software available under an Open Source License. "Open Source Licenses" include, without limitation, any software license that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software be (A) disclosed or distributed in source code form, (B) be licensed for the purpose of making derivative works, or (C) be redistributable at no charge. Any rights not expressly granted to Licensee herein are reserved by Waypoint.
(b) Licensee shall comply with Waypoint's security and privacy policies regarding use of the Service, as amended by Waypoint in its sole discretion from time to time, as set forth under the "Privacy" tab at www.waypointoutcomes.com.
3 OBLIGATIONS OF WAYPOINT
3.1 Waypoint shall provide the Service to Licensee and shall host the Service on servers owned by Waypoint that permit Licensee to access the Service over the Internet.
3.2 WAYPOINT HAS NO OBLIGATION TO PROVIDE LICENSEE WITH SUPPORT OR MAINTENANCE WITH RESPECT TO THE SERVICE, but may do so at its discretion.
4 OBLIGATIONS OF LICENSEE
4.1 Licensee shall be responsible for installing any necessary integration software and for configuring the Service for its own use and purposes, including, without limitation, integrating the Service with Licensee's course management system.
4.2 Licensee shall comply in all respects with the Documentation provided by Waypoint from time to time.
4.3 Licensee shall be responsible for providing its Authorized Users with access to the Service through Licensee-provided Internet browsers and Authorized User logins. Upon Waypoint's request, Licensee shall provide Waypoint with all information deemed necessary by Waypoint regarding Licensee’s Authorized Users in order for Waypoint to provide Service.
4.4 In order to use the Service, Licensee must have or must obtain access to the Internet. Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to access and use the Services remotely, via the Internet, which shall meet the then current Minimum Requirements provided by Waypoint from time to time, including, without limitation, the required operating environment, Internet browsers and versions, processing speeds, Internet bandwidth, and other minimum requirements specified by Waypoint.
4.5 Licensee agrees to use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by Waypoint. Until notified otherwise by Waypoint, Licensee agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Waypoint and to follow logon procedures for services that support such protocols. Licensee acknowledges that Waypoint is not responsible for notifying Licensee of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities that are not owned or operated by Waypoint, including, but not limited to, the Internet.
5 USE OF DATA; FERPA OBLIGATIONS
5.1 During the Term, Licensee will be responsible for all Data entered through the Service or under Licensee's account.
5.2 Waypoint shall have the right to disclose aggregated Data to third parties from time to time. Waypoint agrees that it shall only disclose Data in a manner that does not identify Licensee or disclose its Authorized Users' personal information.
5.3 Licensee acknowledges and agrees that Waypoint shall be entitled to collect and use information relating to the Service obtained as a result of product support, training, and consultative services provided to Licensee. Certain student records provided by Licensee and maintained by Waypoint may constitute "education records" as defined in the Family Educational Rights and Privacy Act ("FERPA"), 20 USC 1232g and its implementing regulations. Waypoint acknowledges and agrees that it shall not disclose any education records to any third party without the prior written consent of the affected student. The parties acknowledge that, except as authorized by the student to whom they pertain (or the student’s parent or guardian), such education records may only be used by Waypoint for the specific purposes described in this Agreement to permit use of the Service by Licensee and Authorized Users.
6 INTELLECTUAL PROPERTY
6.1 Waypoint shall retain all right, title and interest, including all intellectual property rights, in and to the Service, including but not limited to all trademarks rights therein and the Service "look and feel" and the Public Libraries. Licensee hereby covenants that it will not assert any claim that the Service or any modifications created by or for Waypoint infringe any intellectual property right owned or controlled by Licensee. Licensee covenants to take no action nor commit any omission that would be adverse to Waypoint's sole and exclusive ownership of the Service.
6.2 If Licensee or its Authorized Users obtain any rights of ownership in or use of the Service through operation of applicable law or otherwise, including, without limitation, the creation of any Licensee-Created Libraries or other modifications to the Service, Licensee agrees to and hereby transfers, grants, conveys, assigns and relinquishes exclusively to Waypoint any and all right, title and interest it has or may acquire in the Service and such Licensee-Created Libraries under patent, copyright, trade secret, trademark or other law relating to intellectual property. Waypoint shall own all right, title and interest in any modifications to the Service, including Licensee-Created Libraries made by Licensee or its Authorized Users. Licensee agrees to take all lawful actions and cooperate and execute any documents that might be necessary or reasonably helpful for Waypoint to secure registration in any of the patents, copyrights, or trademarks in such Licensee-Created Libraries and other Licensee-created materials as contemplated under this Agreement.
6.3 Licensee agrees that it shall not use Waypoint's name or trademarks without Waypoint's prior written consent, provided that Licensee shall be entitled to disclose that Licensee is a licensee of the Service and refer to Waypoint and/or the Service for non-commercial academic purposes, which may include, but shall not be limited to teaching, research, grant applications, publications, and conferences.
6.4 Apart from the license rights expressly set forth in this Agreement, Waypoint does not grant and Licensee does not receive any ownership right, title or interest, nor any security interest or other interest in any intellectual property rights relating to the Service, nor in any part or copy of the foregoing. Licensee shall not use, sell or otherwise distribute the Service or any modifications thereto except as provided in this Agreement.
7.1 Without the prior written consent of Waypoint, Licensee will not use any Confidential Information (defined herein) except as necessary to use the Service and perform obligations under this Agreement and will not, by any act or failure to act, divulge to any third party, or cause to be entered into the public domain, any Confidential Information. "Confidential Information" means information that is transmitted by Waypoint to the Licensee (or otherwise developed or obtained by the Licensee) in connection with the performance of this Agreement that should reasonably have been understood by Licensee due to legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to Waypoint, including, without limitation, the Software and any proprietary, technical, marketing, business, financial, or other non-pubic information. Licensee will exercise at least the same amount of diligence in preserving the secrecy of the Confidential Information as it uses in preserving the secrecy of its own most valuable confidential information, but in no event less than best efforts. Information shall not be considered Confidential Information if and to the extent that it: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Licensee; (b) was known to Licensee, without restriction, at the time of disclosure as proven by the files of Licensee in existence at the time of disclosure; or (c) becomes known to Licensee, without restriction, from a source other than Waypoint without breach of this Agreement by Licensee and otherwise not in violation of the other Waypoint's rights.
8 TERM AND TERMINATION
8.1 This Agreement shall commence as of the Effective Date and continue for a period of twelve (12) months, unless earlier terminated as provided below.
8.2 This Agreement (including the licenses granted hereunder) will terminate immediately: (a) upon any breach of the license grants in Section 2 or any incurable breach of this Agreement by Licensee; (b) if Licensee fails to cure any curable breach within fifteen (15) days after notice of such breach; or (c) as this Agreement otherwise provides.
8.3 This Agreement may be terminated by Waypoint at any time, for any reason or none, by providing 30 days advance written notice to Licensee. Licensee may be notified by an e-mail sent to Licensee at the e-mail address provided by Licensee in the registration process.
8.4 Upon termination or expiration of this Agreement, Waypoint may immediately deactivate Licensee's account and related Data. Licensee acknowledges that Waypoint shall not be liable to Licensee or to any third party for any termination of Licensee's access to the Service or deletion of the Data by Waypoint in accordance with this Agreement.
8.5 Waypoint reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof).
8.6 In addition to any other rights granted to Waypoint herein, Waypoint reserves the right to suspend Licensee's access to the Service if Licensee fails to comply with the terms of this Agreement.
9 REPRESENTATIONS AND WARRANTIES; DISCLAIMER
9.1 Each party represents and warrants that the execution and delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action, and this Agreement constitutes a legal, valid and binding obligation of such party, enforceable in accordance with its terms.
9.2 Licensee represents and warrants that the execution, delivery, performance and compliance by it with this Agreement, including the use of the Service by Licensee or any Authorized User, will not (with or without the giving of notice or passage of time) (a) result in any material breach of, constitute a default under, or result in the imposition of any lien or encumbrance upon its assets or business pursuant to any material agreement or other instrument to which it is a party or by which it, or any of its properties, assets or rights is bound or affected; (b) violate any provision of any law, judgment, decree, order, statute, rule, code or regulation applicable to or binding upon it; or (c) require a registration, filing, application, notice, consent, approval, order, qualification or waiver with, to or from any governmental authority or any third party.
9.3 THE SERVICE IS PROVIDED "AS IS," AND WITH ALL FAULTS AND EXCEPT AS PROVIDED IN SECTION 9.1, WAYPOINT DOES NOT GRANT, AND LICENSEE DOES NOT RECEIVE, ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. WAYPOINT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF DEALING OR PERFORMANCE, CONCERNING THE SERVICE OR ANY MODIFICATIONS THERETO. WITHOUT LIMITING THE FOREGOING, WAYPOINT GRANTS NO WARRANTY THAT THE SERVICE IS ERROR-FREE, SECURE, OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM, INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY. LICENSEE ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, BY WAYPOINT IN ENTERING INTO THIS AGREEMENT OTHER THAN THOSE EXPRESSLY CONTAINED IN THIS AGREEMENT.
10 INDEMNITY & LIMITATION OF LIABILITY
10.1 Waypoint shall indemnify, defend and hold Licensee harmless from and against any liabilities, losses, damages costs and expenses resulting from any proceeding brought by a third party against Licensee solely to the extent that it is based on a claim that the Service infringes any registered patent, copyright or trademark of a third party; provided that Licensee (a) promptly gives Waypoint notice of the claim, suit, action, or proceeding; (b) gives Waypoint sole control of the defense and related settlement negotiations; and (c) provides Waypoint with all reasonably available information and assistance necessary to perform Waypoint's obligations under this paragraph. Notwithstanding the foregoing, Licensee may also participate in the defense and settlement with counsel of its own choosing, at Licensee's sole cost. Notwithstanding the foregoing, Waypoint shall not be liable for any claim based on (i) the combination, operation, or use of the Service with any other software program, service, equipment, data, or programming not supplied by Waypoint, or (ii) the use of the Service or any part thereof that has been modified without the prior written consent of Waypoint.
10.2 If a preliminary or final judgment shall be obtained against Licensee's use of the Services by reason of a claim that the Service infringes or misappropriates the intellectual property rights of a third party or if the Service is likely to become the subject of such a claim, Waypoint may at its option and expense either procure for Licensee the right to continue to use the Service as provided in this Agreement, or replace or modify the Service with a version of Service that is non-infringing, but performing substantially similar functions. In the event that neither of the foregoing options is commercially reasonable in Waypoint's sole judgment, Waypoint shall cease providing the Service to Licensee and refund to Licensee any pre-paid license fees paid by Licensee for the remainder of the Term. THE FOREGOING SHALL BE THE SOLE AND EXCLUSIVE OBLIGATIONS OF WAYPOINT, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
10.3 Licensee shall indemnify, defend and hold Waypoint harmless from and against any and all liabilities, losses, damages, costs and expenses arising out of or relating to any claims relating to (a) Licensee-Created Libraries or other modifications made by Licensee or its Authorized Users to the Service, (b) any breach of Licensee's covenants, representations and warranties hereunder, and (c) any use of the Service not permitted hereunder; provided, however, that Licensee shall not settle any such claim without the prior written consent of Waypoint.
10.4 IN NO EVENT SHALL WAYPOINT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE (INCLUDING LOST PROFITS AND LOSS OF DATA), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, EVEN IF WAYPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.1 Independent Contractors. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties. The parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
11.2 No Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement.
11.3 Applicable Law and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof. The parties agree that jurisdiction over and venue in any legal proceeding arising out of or relating to this Agreement will exclusively be in the state or federal courts located in San Diego, California, and each party expressly consents to personal jurisdiction in California and expressly waives any right to challenge that venue is proper in San Diego, California.
11.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns, provided, however, that Licensee may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Waypoint, and any such attempted assignment shall be void.
11.5 Severability. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
11.6 Survival. Sections 1, 2.4, 5.2, 5.3, 6, 7, 8, 9, 10, and 11 shall survive the expiration or termination of this Agreement.
11.7 Force Majeure. Waypoint shall not be liable for failure to perform hereunder due to the inability of Licensee or any other person to connect to the Internet, or any other failure or unavailability of Internet connectivity or availability for any cause whatsoever, fiber optic cable cuts, interruption or failure of digital transmission links, hacker attacks, acts of God or nature, or any other cause beyond the control of Waypoint.
11.8 Waiver. The waiver of, or failure to enforce, any breach or default hereunder shall not constitute the waiver of any other or subsequent breach or default.
11.9 Entire Agreement. This Agreement, together with all documents referenced herein, is the entire agreement between Licensee and Waypoint, and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter hereof.
BY SELECTING 'YES' AND AGREEING TO THIS EULA OR USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT (a) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (b) YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND (c) YOUR OBLIGATIONS UNDER THIS AGREEMENT ARE BINDING AND ENFORCEABLE.