BLACKBOARD SOFTWARE DEVELOPER'S KIT LICENSE
READ THESE TERMS CAREFULLY BEFORE ACCESSING THE BLACKBOARD SOFTWARE DEVELOPER'S KIT. BY ACCESSING OR USING BLACKBOARD SOFTWARE DEVELOPER'S KIT, LICENSEE REPRESENTS AND WARRANTS THAT IT HAS READ THIS LICENSE AGREEMENT, THAT IT UNDERSTANDS SUCH LICENSE AGREEMENT, AND IT, ITS EMPLOYEES AND AGENTS WILL BE BOUND BY ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LIMITED LICENSE AGREEMENT, PLEASE DO NOT REVIEW OR USE SOFTWARE DEVELOPER'S KIT AND, IF APPLICABLE, PROMPTLY RETURN IT TO BLACKBOARD.
1. PROGRAM DESCRIPTION
Licensee agrees that it is entering into this Agreement to initiate efforts towards developing a System Extension that provides a value added benefit to Blackboard's software, platform or user experience. Any effort that is not compatible with the foregoing will be considered a violation of this License.
"Software Developer's Kit" means the Software and Documentation made available to Licensee as a result of this Agreement. "Documentation" means Blackboard's standard documentation provided on www.Blackboard.com for the Software Developer's Kit. "Software" means the sample code developed by Blackboard included as part of the Software Developer's Kit. "System Extension" means the software application program that is designed to operate in combination, seamlessly and easily, with the Software (ii) contains functionality authored or created by Licensee or on Licensee's behalf and not contained in the Software, and (iii) does not incorporate any part of the Software or otherwise constitute a derivative work of the Software. "Blackboard Tools" mean all design elements, formulas, documentation, templates, formatting, CGIs, Java scripts, PL/SQL coding, other applications, content, software or other technology embodied in or used in connection with the development of the Blackboard Property pursuant to this Agreement, all of which shall remain the sole and exclusive property of Blackboard or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto. "Derivative Work" means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgment, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted (including by framing a preexisting work into the Derivative Work so that a Web browser would display the preexisting work within the Derivative Work), and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work.
3. GRANT OF LICENSE
3.1 Grant. Solely in connection with the Program Description of this Agreement, as set forth in Section 1 above, Blackboard grants to Licensee, and Licensee hereby accepts, a limited, non-exclusive, nontransferable, license to download, review and use one copy of the Software Developer's Kit on the Internet or Intranet server or servers at Licensee's site. Licensee may use the Software Developer's Kit solely in connection with its own internal development purposes.
3.2 Copies. Licensee may copy the Software Developer's Kit, or any portion thereof, in whole or in part only for the purposes set forth in Section 3.1.
3.3 Restrictions. Apart from the licenses expressly granted herein, no license or other right is granted by Blackboard to Licensee under this Agreement.
3.4 Nondisclosure/Notice. Licensee shall treat the Software Developer's Kit as strictly confidential, and shall use the same care to prevent disclosure of such information as Licensee uses with respect to its own confidential and proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Licensee will notify Blackboard's legal department in writing immediately in the event Licensee learns of any unauthorized possession, use or knowledge of the Software Developer's Kit and will cooperate with Blackboard in its efforts to protect Blackboard's rights with respect to the Software Developer's Kit.
4. Professional Services.
Upon Licensee's request, Blackboard will provide Licensee with professional consulting services on a time and materials basis in connection with developing the System Extension(s) using the Software Developer's Kit licensed herein.
Blackboard reserves the right to change the rates for hourly consultation services. Blackboard shall use commercially reasonable efforts to perform the professional services and shall perform the services in a professional manner in accordance with industry standards. Each time that Licensee requests Blackboard to perform services which Blackboard, in its reasonable discretion after consultation with the Licensee, deems to be Services that can be performed by Backbaord, the Licensee shall deliver to Blackboard a written request describing the proposed professional services, and Blackboard then shall prepare a Work Statement as an addendum to this Agreement describing the proposed professional services and setting forth the estimated date of completion of the Proposed Professional Services, and the fees, costs and expenses payable by the Licensee to Blackboard in connection with the performance of such services. The Licensee, within 10 days after receipt of the proposed Work Statement addendum, shall notify Blackboard of its acceptance of such addendum. If the Licensee does not accept the proposed Work Statement, Blackboard shall have no obligation to perform the proposed professional services
5. TERM; TERMINATION
5.1 Term and Termination. The Term of this Agreement shall commence upon acceptance by Licensee and shall remain in effect for one year from the date of this Agreement. The Agreement shall be automatically renewed on a year-to-year basis for successive terms of one (1) year ("each a "Renewal Term"). Either Party may terminate this Agreement thirty (30) days after providing written notice to the other Party. Blackboard may terminate this Agreement immediately by written notice, if Licensee breaches Section 3 or 5 of this Agreement.
5.2 Survival. The termination or expiration of the Agreement shall not relieve either party of any obligation or liability accrued hereunder prior to or subsequent to such termination or expiration, nor affect or impair the rights of either party arising under the Agreement prior to or subsequent to such termination or expiration, except as expressly provided herein.
6. INTELLECTUAL PROPERTY AND OWNERSHIP INTERESTS
6.1 Intellectual Property Restrictions. Except as otherwise expressly set forth in this Agreement, Licensee shall not copy the Software Developer's Kit, in whole or in part; (ii) adapt, alter, modify, or translate the Software Developer's Kit, in whole or in part; (iii) sell, assign, distribute, lease, market, rent, sublicense, transfer, make available, or otherwise grant rights to the Software Developer's Kit, in whole or in part to any third party in any form; (iv) electronically transfer the Software Developer's Kit in whole or in part from one computer to another over a network or enable any timesharing or service bureau use of the Software Developer's Kit; (v) obscure, remove or alter any of the trademarks, trade names, logos, patent or copyright notices or markings to the Software Developer's Kit, in whole or in part; (vi) add any other notices or markings to the Software Developer's Kit or any portion thereof; or (vii) reverse engineer, decompile or disassemble any component of the Software Developer's Kit or otherwise obtain or attempt to obtain the source code other than as permitted under this License. Licensee acknowledges that Blackboard shall be entitled to equitable relief, including preliminary and permanent injunctive relief, in addition to other legal remedies, in the event that Licensee breaches this Section 6.1 or Section 6.3 or Section 3.
6.2 Other Rights. Licensee hereby grants to Blackboard the limited right to use Licensee's name, logo and/or other marks for the sole purpose of listing Licensee as a user of the Software Developer's Kit in Blackboard's promotional materials. Blackboard agrees to discontinue such use within fourteen (14) days of Licensee's written request, though with no obligation by Blackboard to discontinue using existing printed materials.
6.3 Ownership of Blackboard Property, Software and Blackboard Tools. As between Licensee and Blackboard, Blackboard Property, Software Developer's Kit and Blackboard Tools, and all other content not deemed to be Licensee Property, together with any and all Derivative Works therefrom, are and shall remain the sole and exclusive property of Blackboard or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto. Nothing in this Agreement shall be construed to grant Licensee any ownership right in Blackboard Tools, Software Developers Kit, Blackboard Property or any other software owned or licensed by Blackboard. If title to the Software Developer's Kit or any part or element thereof does not, by operation of law, vest in Blackboard, Licensee hereby assigns to Blackboard, or its designee all right, title and interest in and to the Software Developer's Kit.
6.4 Vesting of Rights. To the extent, if any, that ownership of the Blackboard Property, Software Developers Kit, or Blackboard Tools do not automatically vest in Blackboard by virtue of this Agreement, Licensee hereby transfers and assigns to Blackboard all rights, title interest and goodwill which Licensee may have in and to Blackboard Property and/or Blackboard Tools. Licensee acknowledges that it has no rights of exclusivity as to any of the services to be provided by Blackboard under this Agreement, and that Blackboard shall have the right to provide to third parties services which are the same or similar to the services provided to Licensee, and to use or otherwise exploit any Blackboard Property, Software, and Blackboard Tools in providing such services.
7. DISCLAIMERS AND REMEDIES
7.1 Disclaimer of Warranty. THE SOFTWARE DEVELOPER'S KIT, AND ALL PORTIONS THEREOF, AND ANY ASSOCIATED PROFESSIONAL SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLACKBOARD AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER BLACKBOARD NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE DEVELOPER'S KIT WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE SOFTWARE DEVELOPERS' KIT WILL OPERATE ERROR FREE, OR THAT THE SOFTWARE DEVELOPER'S KIT IS COMPATIBLE WITH ANY PARTICULAR OPERATING SYSTEM. BLACKBOARD AND ITS LICENSORS MAKE NO GUARANTEE OF ACCESS OF ACCURACY OF THE CONTENT CONTAINED ON OR ACCESSED THROUGH THE SOFTWARE DEVELOPER'S KIT.
7.2 Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL BLACKBOARD OR ITS LICENSORS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE DEVELOPER'S KIT OR ANY PORTION THEREOF, DEFECTS IN WARRANTY, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF BLACKBOARD AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES THAT THESE DISCLAIMERS OF WARRANTY PERMIT BLACKBOARD TO PROVIDE SOFTWARE DEVELOPER'S KIT AT A LOWER COST THAT IT OTHERWISE COULD, AND SUCH DISCLAIMERS OF WARRANTY ARE REASONABLE. IN NO EVENT SHALL BLACKBOARD'S LIABILITY EXCEED THE AMOUNT OF FEES PAID FOR THE PARTICULAR SOFTWARE DEVELOPER'S KIT LICENSED HEREUNDER FOR THE CURRENT TWELVE (12) MONTH PERIOD OR .00 WHICHEVER IS GREATER.
8.1 Licensee. Licensee shall, at its own expense, defend or, at its option, settle any claim, suit or proceeding brought against Blackboard arising out of a Licensee's use of the Software Developer's Kit and shall pay any damages finally awarded or settlement amounts agreed upon to the extent based upon such use ("Blackboard Claim"); provided that Blackboard provides Licensee with prompt written notice of such Blackboard Claim; (ii) control over the defense and settlement of such Blackboard Claim; and (iii) proper and full information and assistance to settle or defend any such Blackboard Claim.
8.2 Exclusive Remedy. THE FOREGOING PROVISIONS OF SECTION 6 and 7 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF EACH PARTY, AND THE EXCLUSIVE REMEDY OF EACH PARTY WITH RESPECT TO ANY AND ALL CLAIMS, INCLUDING BUT NOT LIMITED TO ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
9.1 Severability. Should any term or provision of this Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term or provision shall be modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of law and the remainder of this Agreement (or, as the case may be, the application of such provisions to other circumstances) shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law, and the parties shall use their best efforts to substitute for the offending provision new terms having similar economic effect.
9.2. Governing Law. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia without reference to its conflicts of law provisions. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the Commonwealth of Virginia or in a local court of the Commonwealth of Virginia, and each party hereto irrevocably submits to the non-exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. Licensee hereby acknowledges and agrees that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
9.3 Modification and Waiver. Any modification, amendment, supplement, or other change to this Agreement attached hereto must be in writing and signed by a duly authorized representative of Blackboard and Licensee. All waivers must be in writing. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver of the future of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right herein.
9.4 Assignment. No right or obligation of Licensee under this Agreement may be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the express prior written consent of Blackboard, and any attempt to assign, delegate or otherwise transfer any of Licensee's rights or obligations hereunder, without such consent, shall be void. Subject to the preceding sentence, this Agreement shall bind each party and its permitted successors and assigns.
9.5 U.S. Government Sales. If Licensee is a U.S. Government entity, the Software is provided with RESTRICTED RIGHTS. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs of (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Contractor/manufacturer is Blackboard Inc., 1899 L Street, N.W., 5th floor, Washington, DC 20036. All rights not specifically granted in this statement are reserved by Blackboard.
9.6 Export Control. Licensee shall not export or allow the export or re-export the Software Developer's Kit, any components thereof, without the consent of Blackboard and compliance with all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including without limitation, the Export Administration Regulations of the U.S. Department of Commerce Bureau of Export Administration (as contained in 15 C.F.R. Parts 730-772), and, if applicable, relevant foreign laws and regulations.
9.7 Entire Agreement. This Agreement constitutes the entire, full and complete Agreement between the parties concerning the subject matter hereof, and they collectively supersede all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter.