This Harmonize Software License Agreement (the “Agreement”) is between you (“Client”) and the 42 Lines Inc. entity that owns the Software that you are accessing (“42 Lines” or “we”). If you are agreeing to this Agreement not as an individual but on behalf of your institution or other entity for which you are acting then “you” means your entity and you are binding your entity to this Agreement. 42 Lines may modify this Agreement from time to time.
The “Effective Date” of this Agreement is the date which is your initial access to or use of the Software.
By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order, or by using or accessing the Software, you indicate your assent to be bound by this Agreement. If you do not agree to this Agreement, do not use or access this Software.
Harmonize Services & Termination
42 Lines will use commercially reasonable efforts to provide Client with the Harmonize Services. Client will use the Harmonize Services only in compliance with 42 Lines’ standard published policies then in effect and all applicable laws and regulations. Although 42 Lines has no obligation to monitor Client’s use of the Harmonize Services, 42 Lines may do so and may prohibit any use of the Harmonize Services it believes may be (or alleged to be) in violation of the foregoing. Each party may terminate this Agreement by giving the other party ten (10) days written notice of termination. Sections 2 through 7 will survive any termination or expiration of this Agreement.
Confidentiality & Proprietary Rights
a. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Proprietary Information”). Proprietary Information of 42 Lines includes non-public information regarding features, functionality and performance of the Harmonize Services, including training videos. Proprietary Information of Client includes non-public data provided by Client to 42 Lines to enable the provision of the Harmonize Services (“Client’s Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party’s Proprietary Information, including that 42 Lines will use industry standard measures to protect the security of any Client’s Data in its possession, and (ii) not to use (except in performance of the Harmonize Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
b. 42 Lines will own and retain all right, title and interest in and to the Services and all related software, and all improvements, enhancements or modifications thereto. If Client provides any suggestions, comments for enhancements or functionality or other feedback to 42 Lines with respect to any of 42 Lines’ products or services, 42 Lines will have the full, unencumbered right to use and otherwise fully exploit the same in connection with its products and services. No rights or licenses are granted except as expressly set forth herein.
c. Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Harmonize Services or any related software or otherwise use the Harmonize Services or such software to develop any technology similar to the Harmonize Services or such software; modify, translate, or create derivative works based on the Harmonize Services or any related software; use the Harmonize Services or any related software for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than its students); or remove any proprietary notices or labels.
Client will own all right, title and interest in and to the Client’s Data. The format in which the Client’s Data is exported from Harmonize will be reasonably determined by 42 Lines. Notwithstanding anything to the contrary, 42 Lines will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Harmonize Services and related systems and technologies (including Client’s Data), and 42 Lines will be free to use such information and data to improve and enhance its products and services and for other development, diagnostic and corrective purposes in connection with its products and services, provided that within thirty (30) days after termination or expiration of this Agreement, 42 Lines will delete all Client’s Data in its possession.
42 Lines represents and warrants that it will perform the Harmonize Services in a professional and workmanlike with employees having a level of skill commensurate with the requirements of this Agreement. Harmonize may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by 42 Lines or by third-party providers, or because of other causes beyond 42 Lines’ reasonable control, but 42 Lines will use reasonable efforts to keep Harmonize available at all times and provide advance notice in writing or by e-mail of any scheduled service disruption. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT THE HARMONIZE SERVICES ARE DEPENDENT ON HOST LMS PLATFORM, AND 42 LINES WILL NOT BE RESPONSIBLE IN ANY WAY FOR ANY ISSUE OR LIABILITY THAT ARISES AS A RESULT OF THE HOST LMS PLATFORM. IN ADDITION, CLIENT IS SOLELY RESPONSIBLE FOR ALL CONTENT THAT IS SHARED USING THE HARMONIZE SERVICES.
Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM SECTION 6 OR A BREACH OF SECTION 2, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES)
42 Lines will defend at its expense any third party claim, suit or proceeding (each, a “Claim”) brought against Client by a third party alleging that the use of the Harmonize Service as contemplated hereunder infringes the intellectual property rights of a third party, and 42 Lines will pay all costs and damages finally awarded against Client by a court of competent jurisdiction as a result of any such Claim; provided that Client (a) promptly gives written notice of the Claim to 42 Lines; (b) gives 42 Lines sole control of the defense and settlement of the Claim (provided that 42 Lines may not settle any Claim unless it unconditionally releases Client of all liability); and (c) provides to 42 Lines, at 42 Lines’ reasonable cost, all reasonable assistance. The foregoing indemnity will not apply to any Claim based upon or arising from (i) any use of the Harmonize Services outside the scope of this Agreement, or (ii) a combination of the Harmonize Services with any content or other technology not provided by 42 Lines, to the extent the Claim would not have arisen but for such combination.
For all purposes under this Agreement each party will be and act as an independent contractor and will not bind nor attempt to bind the other to any contract. This Agreement and any dispute arising hereunder will be governed by the laws of the State of Illinois, without regard to the conflicts of law provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. Each party agrees that money damages would not be a sufficient remedy for any breach or threatened breach of this Agreement, and the aggrieved party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for such breach. Without limiting anything herein, neither party will have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. Neither party will have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major overnight delivery courier service to the address specified on the cover page hereto or such other address as may be properly specified by written notice hereunder. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement will otherwise remain in full force and effect and enforceable. For purposes hereof, “including” means “including without limitation”.