2. LICENSE. Solely to the extent necessary to utilize the Solution during the term of this Agreement and in accordance with this Agreement, McGraw-Hill grants the User a limited, non-exclusive, non-transferable, and non-sublicensable worldwide license to access and use the Solution over the Internet via the website provided for the Solution (the "Website") solely User's internal use (all of the foregoing rights, collectively, the "License").
3. RESTRICTIONS ON USE. User shall not, and shall cause its employees, officers, directors, members, managers, partners, agents, third party service providers, or other designated persons (its "Representatives") not to, take any of the following actions: (a) creating or enabling the creation of derivative works, modifications, or adaptations of the Solution; (b) decompiling, reverse engineering or disassembling the Solution, (c) distributing or disclosing the Solution to third parties; (d) removing or modifying any proprietary marking or restrictive legends placed on the Solution; or (e) using any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Solution.
4. ACCESS TO McGraw-Hill CONTENT. McGraw-Hill may provide Users with access to content and services through the Solution (the "McGraw-Hill Content"). All use of the McGraw-Hill Content is subject to the the terms herein as well as any additional terms agreed to by the parties in connection with such McGraw-Hill Content and/or posted on the website for such McGraw-Hill Content, including, without limitation, any prohibitions on distribution of the McGraw-Hill Content to Students or third parties. The Solution is available to individuals enrolled in one or more courses or classes of User ("each, a "Student") through a link. User may disable the link to the Solution in any course. No User may share or distribute to a third party any User screen name or password for accessing the McGraw-Hill Content. Users may access and use materials from the McGraw-Hill Content for their own research or study only. Users may not otherwise copy, transmit, rent, forward, lend, sell, or modify any materials from the McGraw-Hill Content or modify or remove any proprietary notices contained therein, or create derivative works based thereon. Users may not engage in systematic retrieval of content from the McGraw-Hill Content to create or compile, directly or indirectly, a collection, compilation, database or directory. Users may not disseminate any portion of the McGraw-Hill Content through electronic means, including mail lists or electronic bulletin boards. Except for the limited access rights granted User, all rights in the McGraw-Hill Content are reserved by McGraw-Hill, and User acquires no right, title or interest in any such content
6. EFFECT OF TERMINATION OR EXPIRATION. User's right to use the Solution shall end immediately upon any termination or expiration of this Agreement, and User shall immediately cease any use of the Solution upon such termination. The following provisions shall survive any termination or expiration of this Agreement: Section 3 ("Restrictions on Use"), this Section 6 ("Effect of Termination or Expiration"), Section 7 ("Intellectual Property Rights"), Section 8 ("Confidentiality"), Section 9 ("Disclaimer of Warranties"), Section 10 ("Indemnification") and Section 11 ("Miscellaneous").
7. INTELLECTUAL PROPERTY RIGHTS. No intellectual property rights of any kind are assigned or transferred to User under this Agreement. User's license with respect to the Solution and any other materials provided hereunder is only as expressly set forth in this Agreement. User shall have no right to use the Solution for any purpose other than as set forth herein. User shall not challenge, or assist any person or entity in challenging, MHE's right, title, and interest in the Solution.
8. CONFIDENTIALITY. The parties acknowledge and agree that, as a result of negotiating, entering into and performing this Agreement, each party (the "Receiving Party") has and will have access to certain confidential information ("Confidential Information") of the other party (the "Disclosing Party"). "Confidential Information" means all information provided by the Disclosing Party to the Receiving Party hereunder that is (i) proprietary and/or non-public information related to the past, present and future business activities of the Disclosing Party, its subsidiaries, and its affiliates; (ii) information relating to the Disclosing Party's business plans, pricing, financial information, methods, processes, code, data, information technology, network designs, passwords, and sign-on codes; (iii) the terms of this Agreement; and/or (iv) any other information that is designated as confidential by the Disclosing Party. Confidential Information of McGraw-Hill shall also include the Solution.
Any Student user IDs and/or personally identifiable information about a Student provided by User to McGraw-Hill ("Student Information") is considered Confidential Information of User. McGraw-Hill shall enable User to maintain compliance with the Family Educational Rights and Privacy Act ("FERPA") in connection with use of the Solution.
Confidential Information does not include information that is or was, at the time of the disclosure: (i) generally known or available to the public; (ii) received by Receiving Party from a third party; (iii) already in Receiving Party's possession prior to the date of receipt from Disclosing Party; or (iv) independently developed by the Receiving Party provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, or breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party.
At all times the Receiving Party shall: (i) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (ii) not use the Disclosing Party's Confidential Information other than as necessary to perform its obligations under this Agreement, (iii) not disclose, distribute, or disseminate the Confidential Information to any third party (except to Representatives, as expressly permitted below), and (iv) disclose the Disclosing Party's Confidential Information to its Representatives on a "need to know basis;" provided that each Representative is bound by confidentiality obligations at least as restrictive as those contained in this Agreement.
9. DISCLAIMER OF WARRANTIES. McGraw-Hill DOES NOT WARRANT THE COMPLETENESS, ADEQUACY, ACCURACY, OR USEFULNESS OF THE SOLUTION ANY OTHER MATERIALS OR SOLUTION PROVIDED HEREUNDER (COLLECTIVELY, THE "MATERIALS"). THE MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL DEFECTS. McGraw-Hill EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, McGraw-Hill MAKES NO WARRANTY THAT (i) THE MATERIALS WILL MEET THE REQUIREMENTS OF USER, (ii) THE SOLUTION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MATERIALS WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE MATERIALS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY McGraw-Hill, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES. To the extent that McGraw-Hill may not as a matter of applicable law disclaim an implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
10. INDEMNIFICATION. McGraw-Hill shall indemnify, defend and hold harmless User from and against any and all liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys' fees, related to or arising out of any claim by a third party that the technology platform underlying the Solution infringes or misappropriates the intellectual property rights of such third party. User shall indemnify, defend and hold harmless McGraw-Hill from and against any and all liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys' fees, related to or arising out of use of the Solution by User, except to the extent that such claim is subject to indemnification by McGraw-Hill hereunder.
11. MISCELLANEOUS. The Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions with respect to the subject matter of the Agreement, and neither party has relied upon any representation, express or implied, not contained in the Agreement. Neither party will be liable to the other party for any consequential, incidental, indirect, punitive or special damages arising from or relating to this Agreement. The rights and remedies of the parties are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under the Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. No modification of or amendment to the Agreement will be effective unless in writing signed by authorized representatives of both parties. If any provision of the Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent. User may not assign or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of McGraw-Hill, which consent McGraw-Hill may grant or withhold in its sole and absolute discretion. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any purported or attempted assignment or other transfer or delegation in violation of this Section shall be null and void.