ACCEPTANCE OF TERMS
DESCRIPTION OF SERVICES
Through its Services, NWEA provides you with access to the data sharing manager in order for you to request, approval, decline and/or terminate data sharing permissions ("Services"). The Services, including any updates, enhancements and/or new features are subject to the TOU.
NWEA grants you a nonexclusive, nontransferable license to access, use, and display the Services for your internal use only, subject to the Data Sharing Terms located at: https://legal.nwea.org/data-sharing-terms.html ("Data Sharing Terms"). You acknowledge that you shall abide by the Data Sharing Terms. as amended from time to time.
NWEA may terminate or suspend your license to the Services at any time, with or without cause or notice to you, Upon termination, all provisions of this TOU that would reasonably be expected to survive the termination of this TOU shall do so.
The Services are owned by NWEA and/or its suppliers and is copyrighted and licensed, not sold to you. All rights, title, and interest in the Services, all copies, and all updates, enhancements, modifications, and improvements, along with all intellectual property rights related thereto, shall remain with NWEA or its suppliers as applicable. The Services and all updates, modifications, and improvements are protected by United States and international copyright laws and treaties, as well as other intellectual property laws. You are not granted any license to use any of NWEA's trade or service marks and NWEA retains all right, title, and interest in its trade and service marks.
PERSONAL AND NON-COMMERCIAL USE LIMITATION.
Unless otherwise specified, the Services are for your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Services.
MEMBER ACCOUNT, PASSWORD, AND SECURITY.
Use of the Services requires that you to open an account. In doing so you must contact NWEA technical support to complete the registration process by providing us with current, complete and accurate information as prompted by the applicable support representative. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify NWEA immediately of any unauthorized use of your account or any other breach of security. NWEA will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by NWEA or another party due to someone else using your account or password. You may not use anyone else's account at any time, without the permission of the account holder. Any use or access by anyone under the age of 13 is prohibited. If you open an account on behalf of a company, organization, or other entity, then (a) "you" includes you and that entity, and (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these TOU and bind the entity to these TOU, and that you agree to these TOU on the entity's behalf. In order to access the Services you need to be an authorized user of a current NWEA partner. You understand and agree that NWEA may report information (including, but not limited to, course name, duration, date of completion and progress activity) regarding your use of the Services to your applicable school district and/or administrator. NWEA does not control the use of this information by your applicable school district and/or administrator and, therefore, NWEA specifically disclaims any and all liability with regard to such use.
NO UNLAWFUL OR PROHIBITED USE.
As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any NWEA (and/or its suppliers) server(s), or the network(s) connected to any NWEA (and/or its suppliers) server(s), or interfere with any other party's use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any NWEA server or to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
USE OF SERVICES
The Services may contain message or communication facilities designed to enable you to communicate with others (each a "Communication Service" and collectively "Communication Services"). You agree to use the Communication Services only to send and receive messages and material that are proper and, when applicable, related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using the Communication Services, you will not:
NWEA has no obligation to monitor the Communication Services. However, NWEA reserves the right to review materials posted to the Communication Services and to remove any materials in its sole discretion. NWEA reserves the right to terminate your access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.
NWEA reserves the right at all times to disclose any information as NWEA deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in NWEA's sole discretion.
Always use caution when giving out any personally identifiable information about yourself or your children in any Communication Services. NWEA does not control or endorse the content, messages or information found in any Communication Services and, therefore, NWEA specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Services.
Materials uploaded to the Communication Services may be subject to posted limitations on usage, reproduction and/or dissemination; you are responsible for adhering to such limitations if you download the materials.
MATERIALS PROVIDED TO NWEA OR POSTED AT ANY NWEA WEB SITE.
NWEA does not claim ownership of the materials you provide to NWEA (including feedback and suggestions) or post, upload, input or submit to any Services or its associated services for review by the general public, or by the members of any public or private community, (each a "Submission" and collectively "Submissions"). However, by posting, uploading, inputting, providing or submitting ("Posting") your Submission you are granting NWEA, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses (including, without limitation, all NWEA Services), including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and the right to sublicense such rights to any supplier of the Services.
No compensation will be paid with respect to the use of your Submission, as provided herein. NWEA is under no obligation to post or use any Submission you may provide and NWEA may remove any Submission at any time in its sole discretion.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to firstname.lastname@example.org and should contain the following information: first and last name, email address, description of the copyrighted work your claiming ownership in (title, type of work, specific online location where your copyright is being infringed, etc…). By sending this email you: (i) agree that you have a good faith belief that the use of the material is not authorized by the intellectual property owner, its agent, or the law (e.g. it is not fair use); (ii) represent that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (iii) as applicable under 17 U.S.C 512(f), you acknowledge that you may be subject to liability for damages if you knowingly materially misrepresent that material or activity is infringing. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL NOT RECEIVE A RESPONSE.
You agree to indemnify, defend, and hold harmless NWEA and NWEA's officers, directors, employees, agents, and representatives, from and against any and all claims, damages, expenses, judgments, fines, and amounts paid in settlement in connection with any proceeding arising from your breach of these TOU or your use of the Services.
NWEA may perform maintenance on the Services at any time without advance notice to you for any reason whatsoever, which may affect your ability to use the Services. NWEA disclaims any and all liability resulting from or related to such events.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NWEA SERVICES ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS OR CAPACITY, OR THAT THE OPERATION OF THE SOFTWARE INCLUDED WITHIN THE SERVICES SHALL BE ERROR-FREE. NWEA DOES NOT AND CANNOT CONTROL PERFORMANCE OF SERVICES BASED ON THE FLOW OF DATA TO OR FROM NWEA'S NETWORK AND OTHER PORTIONS OF THE INTERNET, WHICH DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT SUBSCRIBER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). NWEA DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
IN NO EVENT SHALL NWEA AND/OR ITS RESPECTIVE SUPPLIERS BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR INFORMATION AVAILABLE FROM THE SERVICES. NWEA'S ENTIRE LIABILITY UNDER THESE TOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE RIGHT TO USE THE SERVICES IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THIS LIMITATION OF LIABILITY ALSO APPLIES TO NWEA'S DEVELOPERS AND SUPPLIERS. IT IS THE MAXIMUM FOR WHICH THEY AND NWEA ARE COLLECTIVELY RESPONSIBLE.
LINKS TO THIRD PARTY SITES.
THE SERVICES MAY CONTAIN LINKS TO THIRD-PARTY WEBSITES, WHICH ARE NOT UNDER THE CONTROL OF NWEA AND NWEA IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES. NWEA IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, NWEA DOES NOT ENDORSE OR ASSUME ANY RESPONSIBILITY FOR ANY SUCH THIRD-PARTY SITES, INFORMATION, MATERIALS, PRODUCTS OR SERVICES. IF YOU ACCESS ANY THIRD PARTY WEBSITE, SERVICE OR CONTENT FROM NWEA'S SERVICE, YOU DO SO AT YOUR OWN RISK AND YOU AGREE THAT NWEA WILL HAVE NO LIABILITY ARISING FROM YOUR USE OF OR ACCESS TO ANY THIRD-PARTY WEBSITE, SERVICE, OR CONTENT.
NWEA shall not be liable for any delay or failure to perform any obligation hereunder due to causes beyond its control, including without limitation, war, riot, insurrection, civil commotion, terrorist activity, fire, industrial disputes of whatever nature, acts of nature, computer crimes, epidemics, acts or omissions of third party vendors or suppliers, equipment failures, public enemies of government, failure of telecommunications, system malfunctions, fire, or other casualty.
WAIVER AND SEVERABILITY
Waiver of any default or breach under these TOU by NWEA does not constitute a waiver of any subsequent default or a modification of any other provisions of these TOU. If any part of these TOU shall be held invalid, illegal, in conflict with any law, or otherwise unenforceable by a court of competent jurisdiction, the remainder of these TOU shall nevertheless remain in full force and effect.
NO THIRD PARTY BENEFICIARIES
The parties do not intend to confer any right or remedy on any third party.
ENTIRE AGREEMENT; ORDER OF PRECEDENCE
These TOU, your Master Services Agreement with NWEA, and applicable Schedule A (in that order of precedence) contain the entire understanding of the parties regarding the subject matter of these Services and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of these Services.
You may not assign these TOU to any third party without the prior written consent of the NWEA.
CONTROLLING LAW AND VENUE
These TOU shall be construed and controlled by the laws of the State of Oregon, U.S.A., without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and shall not apply to these TOU. Any litigation arising out of these TOU shall be conducted in courts located in Multnomah County, Oregon.
Last Modified January 16, 2017