Measured Progress Portal Application End-User License Agreement and Privacy Agreement
Please print and keep a copy of this End-User License and Privacy Agreement ("Agreement"). Use of this Portal Application constitutes acceptance of this Agreement. If you do not agree to abide by the terms and conditions of this Agreement, please do not register for this application.
Measured Progress may change any of the terms in this Agreement at any time. Changes will become effective upon posting. Continued use of this application by you or any other end user under your license constitutes acceptance of the terms of the modified Agreement.
1. The Portal
Measured Progress offers this Web-based application through the Internet that requires end user registration. This document will refer to the application "the Portal".
2. Ownership of the Information, Materials and Software of the Portal
You expressly acknowledge and agree that (a) the Portal contains information, text, software, and other material (called "Materials") that are protected by copyrights, trademarks, trade secrets, patents or other proprietary rights (called "Intellectual Property Rights"); (b) all right, title and interest in and to these Materials and Intellectual Property Rights belong solely and exclusively to Measured Progress or its licensors; and (c) these Intellectual Property Rights are valid and protected in all forms, media and technologies existing now or developed later.
Measured Progress may change or discontinue any portion, feature, or content of the Portal at any time with or without notice to you; however, Measured Progress will make reasonable efforts to provide end users notice of significant changes to the Portal when feasible and provide alternative materials if substantial portions of the Portal are removed.
Measured Progress may at any time, with or without notice to you, restrict the use and accessibility of the Portal as well as limit the duration and amount of use made of the Portal. Other than periodic restrictions for the purposes of routine maintenance, such restrictions are typically only made in extraordinary circumstances which are beyond Measured Progress control.
Measured Progress assumes no responsibility for any Materials posted by third parties on the Portal or accessed on the Portal through hypertext or other computer "links" to sites hosted by third parties that are outside of Measured Progress's control. Measured Progress does not endorse products, services or information provided by third parties and shall not be responsible or liable, directly or indirectly for any damage or loss caused or alleged to be caused by or in connection with, use or reliance on any content, goods or services available on or through any third party site or otherwise posted by third parties on the Portal. Further, the inclusion of links on the Portal does not imply that the owners of such third party sites have given permission for inclusion of these links, or otherwise sponsored or endorsed Measured Progress's Portal.
Measured Progress is not responsible for the accessibility of third party sites via the Portal. Should you discover that a third party link on a Portal is broken, no longer pointing to the content so indicated on the Portal, or points to a third party site containing infringing content, malicious code, or any offensive, libelous, or otherwise illegal or inappropriate content, contact Measured Progress via www.measuredprogress.org so we can quickly respond to the issue, your email should include the originating Measured Progress page URL, the linked page URL and a description of the content in question.
3. Use of the Information and Materials of the Portal
3.1 Measured Progress grants a limited license to all users of the Portal that is nonexclusive, personal, and nontransferable. Portal Licensees may use, display, and, when such functions are available on the Portal, reformat, download, and print Materials obtained through the Portal solely for their own personal, non-commercial, educational purposes.
3.2 Login credentials (login name/username and password) may not be shared with others or otherwise disclosed to unauthorized third parties for any purpose whatsoever.
3.3 Except as you may be expressly permitted by this Agreement, you may not use, modify, adapt, reformat, download, upload, post, reproduce, broadcast, publish, display, perform, transfer or redistribute any Materials in any form, format or media or by means of any technology without obtaining the prior written authorization of Measured Progress and any other owner of the Intellectual Property Rights in such Materials.
3.4Prohibited uses of Materials:
3.4.1 You may not reproduce, use, sell, transmit, publish, broadcast, or otherwise disseminate or distribute Materials from the Portal to anyone, including but not limited to others in the same company, school, college or other organization, whether or not for a charge or other consideration, including but not limited to use in with "course packets" or with courses which do include the Portal part of the curriculum.
3.4.2 You may not post Materials from the Portal to newsgroups, mail lists, electronic bulletin boards, or any other on-line destination.
3.4.3 You may not reproduce any illustrations, charts, photographs, outlines, extensive text excerpts, included in the Materials for any use outside of the Portal.
3.5 If you wish to request permission to reproduce Materials from the Portal for other than the specifically authorized educational purpose, or if you have any questions about the proper way to include such notices, use the information available at http://www.measuredprogress.org to contact the appropriate Measured Progress representative. Use of content used under license by Measured Progress may require the permission of the Licensor.
4. Restrictions on Use
You agree not to use the Portal to:
4.1 upload, post, email or otherwise transmit any prohibited content.
4.2 impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity;
4.3 upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "Junk mail," "Spam," "chain letters," "pyramid schemes," or any other form solicitation;
4.4use or attempt to use any "deep-link," "scraper," "robot," "bot," "spider," "data mining," "computer code" or any other automated device, program, tool, algorithm, process or methodology or manual process having similar processes or functionality, to access, acquire, copy, or monitor any portion of the Portal, any data or content found on or accessed through the Portal or any other Measured Progress Materials without the prior express written consent of Measured Progress;
4.5 obtain or attempt to obtain through any means any Materials, or any other data, content, software or code available on or through the Portal ("Portal Content") that have not been intentionally made publicly available either by their public display on the Portal or through their accessibility by a visible link on the Portal;
4.6violate any measure employed to limit or prevent access to the Portal or Portal Content;
4.7violate the security of the Portal or attempt to gain unauthorized access to the Portal, Portal Content, or computer systems or networks connected to any service of the Portal through hacking, password mining or any other means;
4.8 interfere or attempt to interfere with the proper working of the Portal or any activities conducted on or through the Portal, including accessing any Portal Content prior to the time that it is intended to be available to the public on the Portal;
4.9 take or attempt any action that, in the sole discretion of Measured Progress, imposes or may impose an unreasonable or disproportionately large load or burden on the Portal or the infrastructure on the Portal;
4.10 disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges or to normally post messages, articles, or submissions;
4.11 interfere with or disrupt the Portal or servers or networks connected to the Portal, or disobey any requirements, procedures, policies or regulations of networks connected to the Portal; or
4.12 intentionally or unintentionally violate any applicable local, state, national or international law.
5. Disclosure of Demographic and Personally Identifiable Information
5. 1 Some activities within Portal may request users to submit information that is tabulated and stored in a database. The data obtained is used to produce statistics that are integral to the educational value of these activities. Anywhere the requested data is personal in nature, a user's specific responses remain confidential and are not associated with name or e-mail address in any way. By participating in an activity that uses information entered by users for statistical analysis within the activity, you are giving us consent to include your data in the study.
5.2 Measured Progress will not disclose
personally identifiable information associated with your use of the Portal
(e.g., name, email address, physical address, username and password, activity
results) to any third parties not affiliated with Measured Progress, except:
(a) within application rosters, grade books, or communication tools that facilitate instructor and student engagement. Instructors and course administrators have the ability to export grade book information from the Portal for the purpose of maintaining educational records;
(b) where disclosure is requested by the educational institution, school district or system in which the user is enrolled, or by applicable state educational authorities, for educational or administrative purposes, such as evaluating student or instructor participation in the Portal activities or for evaluation of the Portal's educational efficacy, or
6. Your Other Responsibilities Concerning Registration for the Portal
6.1 By registering for the Portal under this Agreement, you certify to Measured Progress that: (a) the information you have provided to Measured Progress in order to register as an end user is complete, accurate and current; (b) you will notify Measured Progress within 15 days of any change in your registration information; and (c) that you will not share your login name/username and password except as expressly authorized under the terms of your license. You further warrant and represent that you are the individual assigned to set up and use the password(s) necessary for access to the Portal. Unauthorized access to this site and/or any unauthorized use of any password is strictly prohibited.
6.2 If any of these certifications is or becomes untrue, or if you do not comply in full with these requirements, Measured Progress has the right to suspend and/or terminate your access to the Portal.
6.3 You are also responsible for obtaining and using all computer hardware and software required for your access to and use of the Portal and for any charges incurred for your own access to the Portal through an Internet access provider or other third party Portal.
6.4 You are responsible for all uses of the Portal through your login name/username and password, whether the use is made by you personally or by someone else. You are responsible for protecting and securing your login name/username and password from unauthorized use and disclosure. In the event that you become aware of or believe there has been any breach of the Portal, such as the theft or unauthorized use of your login name/username and password, you will notify Measured Progress immediately.
7. Termination of Access
7.1 Your access commences the day you submit the registration form whether or not the Portal is used. Your obligations under this Agreement will exist until such access is terminated by you or Measured Progress.
7.2 You may terminate this Agreement and your rights to use the Portal at any time and without cause by notifying Measured Progress in writing of your decision to terminate.
7.3 Measured Progress may, in its sole and absolute discretion, and with or without notice, suspend your access to all or any part of the Portal, or terminate this Agreement and thus your rights to use the Portal, for any conduct or use (whether by you or anyone else having access under your login name/username or password) that Measured Progress believes is a violation of this Agreement or for any other conduct or use that Measured Progress believes is harmful to other end users, Measured Progress's content providers, or to the Portal or the interests of Measured Progress.
8. Your Remedies
8.1 Measured Progress's entire liability to you, and your sole and exclusive remedy, regarding the use of the Portal shall be the replacement of a login name/username or password if a currently valid login name/username or password fails to allow access to the Portal.
8.2 Your sole right with respect to any disagreement or dissatisfaction with (a) this Agreement, as modified from time to time; (b) registration cost or other charges for the use of the Portal, (c) access to, use of, or performance of the Portal, or (d) any Portal Content, is to terminate your access as provided for in this agreement.
9. Disclaimer of Warranties
9.1 THE PORTAL AND ALL INFORMATION, CONTENT, MATERIALS AND SOFTWARE ACCESSIBLE THROUGH THE PORTAL ARE PROVIDED ON AN "AS-IS," "AS-AVAILABLE" BASIS. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO PRODUCTS OR PORTALS FURNISHED TO LICENSEES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE PORTAL. MEASURED PROGRESS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NONINFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9.2 You expressly agree that your use of the Portal is at your sole risk. Measured Progress does not warrant that the Portal will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from your use of the Portal, or as to the accuracy, reliability, completeness, or content of any information, third party Portal, software or merchandise that may be provided through the Portal. No statement, information or advice, including, but not limited to, statements regarding capacity, suitability for use or performance, whether made by a Measured Progress employee, reseller or other representative or otherwise, which is not contained in this agreement shall be deemed to be a warranty by Measured Progress for any purpose or give rise to any liability of Measured Progress whatsoever, and you agree that you will not rely on any such statement, information or advice.
10. Limitation of Liability
10.1 UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MEASURED PROGRESS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES THAT ARISE FROM LOSS OF ANTICIPATED REVENUE, LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS AND INJURY TO PROPERTY, EVEN IF MEASURED PROGRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THAT ARISE IN CONNECTION WITH OR RESULT FROM YOUR USE OF OR INABILITY TO USE THE PORTAL INCLUDING, BUT NOT LIMITED TO, YOUR RELIANCE ON ANY MATERIALS, CONTENT, INFORMATION, PORTALS, SOFTWARE OR PRODUCTS OBTAINED ON THE PORTAL, OR MISTAKES, OMISSIONS, INTERRUPTIONS, COMMUNICATIONS FAILURE, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, OR THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO YOUR RECORDS, PROGRAMS OR PORTALS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND IN SUCH STATES MEASURED PROGRESS'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.2 If, notwithstanding the foregoing, Measured Progress were to be held liable for damages, then regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), in no event shall the maximum liability of Measured Progress and the parties described in the next sentence (Measured Progress's "Related Parties") exceed, either jointly or severally, the aggregate dollar amount paid by you to Measured Progress in the twelve (12) months prior to the claimed injury or damage. All of the provisions of this section are also for the benefit of Measured Progress's directors, officers, shareholders, employees, affiliates, agents, third-party content providers, licensors, and anyone else involved in creating, producing or distributing the Portal, and each shall have the right to assert and enforce these provisions directly on their own behalf.
11. Indemnification by You
To the extent permitted by law, you agree to defend, indemnify and hold harmless Measured Progress and its Related Parties from any claims and expenses related to any violation of this Agreement by your use of the Portal, or in connection with the placement or transmission by you of any material on the Portal except as expressly authorized in this Agreement.
12. Compliance with United States Export Requirements
This Agreement and your use of the Portal are subject to any laws, regulations, orders or other restrictions on export from the United States of America (which we will call the "U.S.") of certain materials and technical data which may be imposed from time to time by the U.S. Government. Therefore, you will not transfer, directly or indirectly, by electronic means or otherwise, any Portal Content, or any direct products thereof, to any country, or to any agent, representative, or foreign national of any country, for which the U.S. Government or any agency thereof requires an export license or other governmental approval at the time of export without first obtaining such license or approval. Pursuant to current restrictions of the U.S. Government, nationals of Cuba, Iran, Myanmar (Burma), North Korea, Sudan and Syria may not use or access the Portal or Portal Content at this time.
Measured Progress may give notice to you by electronic mail, by a posting on the Portal, or by conventional mail. Notice by Measured Progress shall be effective on the date that Measured Progress makes a good faith effort to reach you.
You shall give notice to Measured Progress as stated below. Notice by you shall be effective on the date that Measured Progress actually receives the notice.
U.S. mail: 100 Education Way
Dover, NH 03820
14.1 This Agreement is personal to you, and you may not assign, transfer or delegate your rights or obligations to anyone. This Agreement, your and Measured Progress�s rights and obligations, and any disputes or disagreements regarding the Portal will be governed by the laws of the U.S. that govern contracts wholly entered into and wholly performed within New York. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any and all actions, disputes or controversies relating to the Agreement or the Portal will be decided by courts of competent jurisdiction, and you consent to the jurisdiction and venue of those courts and irrevocably consent to the process document, delivered personally or mailed by certified or registered mail, return receipt requested, at the address set forth in your registration information.
14.2 If you are an office, agency or branch of the United States Government, you are provided the Portal as a commercial item and with only those rights as are set forth in this Agreement, pursuant to 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227-7202-4, and corresponding sections of applicable and corresponding agency Federal Acquisition Regulations ("FARs").
14.3 In the event that any provision of this Agreement is held to be invalid or unenforceable, pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
14.4 You acknowledge that Measured Progress will be irreparably harmed by any breach of this Agreement by you or by your unauthorized use of the Portal or Portal Content and, further, that monetary damages may not be a sufficient remedy for such harm. You agree that Measured Progress shall be entitled, without waiving any other rights or remedies and without further demonstration of irreparable harm or the inadequacy of monetary damages, to obtain injunctive or other equitable relief in the event of any breach of this Agreement by you or by your unauthorized use of the Portal or Portal Content.
14.5 In addition to being a part of the registration form, this Agreement resides on the Portal under the License Agreement link so that you may reference it at any time.
14.6 This Agreement is the entire agreement between Measured Progress and you with respect to the Portal. Headings in this Agreement are for your convenience only and do not have any legal meaning or effect. If any part of this Agreement is invalid, the rest of this Agreement will remain in effect. If Measured Progress waives or fails to enforce any term or condition of this Agreement on any one or more occasions, whether by conduct or otherwise, its waiver or failure to enforce will not mean that it must waive or cannot enforce such term or condition on any other occasion, or any other term or condition of this Agreement. The meaning of this Agreement cannot be changed by your or Measured Progress's conduct, even if repeated, or by any custom or practice of others engaged in the same or similar businesses.
� 1997-2011 Measured Progress, Inc. All rights reserved.
V3 - last updated October 15, 2010