Transition Gradebook End User License Agreement (EULA Agreement)
This is a license agreement ("Agreement") between your organization or yourself (called "User" in this Agreement) and The National Technical Assistance Center on Transition (NTACT) at the University of North Carolina at Charlotte (called "Licensor" in this Agreement). All rights not specifically granted to User in this Agreement are reserved to Licensor. IF USER IS NOT A SCHOOL, SCHOOL DISTRICT, STATE ADMINISTRATOR, OR AN INDIVIDUAL OR ENTITY AUTHORIZED BY A SCHOOL OR DISTRICT ADMINISTRATOR TO DO SO, USER IS NOT ALLOWED TO USE THE SOFTWARE.
Licensor, working with the University of North Carolina at Charlotte (UNCC) has developed software called the Transition Gradebook (the “Software”) with support funding provided by the U.S. Department of Education, Office of Special Education and Rehabilitative Services. As used in this Agreement, the term "Software" includes the actual copy of all or any portion the program provided herewith and made accessible to User by Licensor pursuant to this Agreement.
User agrees that the privacy of all information used by User in conjunction with the Software is the sole responsibility of User. User acknowledges that prior to using the Software, User will obtain any written parental consent or other consents that may be required in accordance with federal or state law or in accordance with school district policies to enable User to enter data into the Software and to permit use of the data in accordance with the terms and conditions of this Agreement.
BY USING THE SOFTWARE, USER ACCEPTS THE SOFTWARE AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO BE BOUND BY THESE TERMS, OR DOES NOT HAVE AUTHORITY TO BE BOUND BY THESE TERMS, THEN USER MUST NOT USE THE SOFTWARE. USER ACKNOWLEDGES THAT THE SOFTWARE IS SOLELY AN EDUCATION INFORMATION RESOURCE AND IS MADE AVAILABLE ON AN AS-IS BASIS WITHOUT OBLIGATION BY LICENSOR OR ANY OTHER PARTY TO PROVIDE ACCOMPANYING SERVICES OR SUPPORT. USER ACKNOWLEDGES AND AGREES THAT THE INFORMATION OBTAINED FROM THE SOFTWARE IS INTENDED AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, USER’S KNOWLEDGE, EXPERTISE, SKILL AND PROFESSIONAL JUDGMENT IN MAKING DECISIONS.
GRANT OF LICENSE: Licensor hereby grants to User a non-exclusive, non-transferable license to use the Software for User’s non-commercial education and research purposes only, without the right to sublicense, pursuant to the terms and conditions of this Agreement. The Software may not be used create or analyze any items (including but not limited to images, data, or documents) for commercial purposes.
PROPRIETARY CONTENT; COPYRIGHT: User acknowledges that the Software is proprietary to Licensor, and as such, User agrees use the Software only in accordance with the terms of this Agreement. The Software is owned by Licensor and is protected by United States copyright laws and applicable international treaties and/or conventions.
USE OF NAMES: Nothing contained in this Agreement shall be construed as conferring any right to use in advertising, publicity or other promotional activities any name, trade name, trademark, or other designation of Licensor, UNCC, or of any other party without the express written permission of Licensor.
USES NOT PERMITTED: User may not modify or copy the Software. User has not been granted any trademark license as part of this Agreement. User may not sell, rent, lease, sublicense, lend, time-share, create derivative works, or transfer, in whole or in part, or provide third parties access to the Software. User agrees not to link or to provide links to the Software for any purpose.
ASSIGNMENT: User may assign this Agreement and its rights hereunder without the prior written consent of Licensor only to staff in the district or school whose server houses the Software. Any other attempted assignment without Licensor’s consent is automatically null and void.
TERM: The term of the license granted by this Agreement commences upon User's acceptance of this Agreement (as indicated by downloading, installing, and/or using the Software) until terminated as provided below. The Agreement automatically terminates without notice if User fails to comply with any provision of this Agreement. User may terminate this Agreement by ceasing using the Software. Upon any termination of this Agreement, User agrees that all provisions which operate to protect the proprietary rights of Licensor shall remain in force and, as such, survive the term of the Agreement.
DISCLAIMER OF WARRANTIES: THE SOFTWARE IS PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT ANY WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR OF NON-INFRINGEMENT. NEITHER LICENSOR NOR UNCC WARRANT THAT THE SOFTWARE IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS. NEITHER LICENSOR NOR UNCC WILL BE LIABLE DIRECTLY OR INDIRECTLY FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, OR OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. USER BEARS ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE SOFTWARE. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTY OF THE ACCURACY, VALIDITY, COMPLETENESS, OR AVAILABILITIY OF INFORMATION OR RESULTS OBTAINED BY THE SOFTWARE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND USER MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE COMMENCEMENT OF THE TERM OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
IMPROVEMENTS: Licensor reserves the right to conduct further research on the software to inform and make modifications or improvements at any time and without notice. User agrees that, if User participates in research with or provides feedback to Licensor, Licensor is permitted to use any information or comments provided by User in making changes to the Software. Licensor is not obligated to implement any suggestions and/or feedback that User may provide regarding the Software, but to the extent Licensor does so, User hereby disclaims on behalf of itself and its personnel any right to compensation therefor.
SUPPORT AND MAINTENANCE: No support, installation, or training by the Licensor is provided as part of this Agreement.
EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INDICENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS RELATED TO USER’S USE OF AND/OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER’S MAXIMUM LIABILITY FOR ANY REASON WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING MATTERS RELATED TO THE SOFTWARE OR THE HARDWARE SHALL BE LIMITED TO ANY LICENSE FEES ACTUALLY PAID BY USER TO LICENSOR HEREUNDER FOR THE PRIOR TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM(S).
INDEMNITY: User will defend, at its own expense, any claim, suit, or action against Licensor or UNCC brought by a third party to the extent that such claim, suit, or action, in connection with User’s use of the Software, is based on, (a) User’s failure to comply with or violation of any applicable law or regulation, (b) User’s infringement of any third party’s intellectual property rights, or (c) User’s violation of this Agreement, and User will indemnify and hold Licensor and UNCC harmless from and against liability that is specifically attributable to such claim, suit, or action or those costs and damages agreed to in a monetary settlement of such claim, suit, or action.
EXPORT REGULATION: User agrees to comply with any and all applicable U.S. export control laws, regulations, and/or other laws related to embargoes and sanction programs administered by the Office of Foreign Assets Control.
SEVERABILITY: If any provision(s) of this Agreement shall be held to be invalid, illegal, or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
NO IMPLIED WAIVERS: No failure or delay by Licensor in enforcing any right or remedy under this Agreement shall be construed as a waiver of any future or other exercise of such right or remedy by Licensor.
CONTROLLING LAW: This Agreement shall be construed in accordance with the laws of the State of North Carolina without recourse to its conflicts of laws provisions. Any suits at law or in equity shall be brought exclusively in courts of the State of North Carolina or in Federal courts located within the State of North Carolina. The parties hereby consent to exclusive jurisdiction and venue in such courts and waive any objection based on forum non conveniens. If User is, or is using the Software in his or her official capacity as an employee or representative of, a U.S., state or local government entity and is legally unable to accept the indemnity, controlling law, or other clauses herein, then those clauses do not apply to such entity, but only to the extent as required by applicable law.
ENTIRE AGREEMENT: This Agreement constitutes the sole and entire agreement between User and Licensor as to the matters set forth herein and supersedes any previous agreements, understandings, and arrangements between the parties relating hereto.