- Gain unauthorized access to NLP’s computer system or engage in any activity that interferes with the performance of, or impairs the functionality or security of the Platform, the Services, or NLP’s networks and computer systems;
- Access the Platform or any of the Services through any automated means or with any automated features or devices (including use of scripts or web crawlers, data mining, scraping, robots, spiders, or any other data gathering or extraction tools), except to the extent the Platform is indexed by general purpose consumer-accessible search engines, such as Google, Yahoo, or Bing;
- Reproduce, duplicate, copy, sell, trade, make derivatives, modify or resell any aspect of the Platform or the Services for any purpose, including commercial purposes;
- Upload, post, or otherwise transmit, through the Platform, any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “phishing” or any other form of solicitation;
- Reverse-engineer, decompile, circumvent or otherwise attempt to discover any NLP source code that form the Platform; and
- Reproduce, duplicate, copy, sell, trade, or resell any products or services bearing any trademark, service mark, trade name, logo, or other signifier owned by NLP in a way that is likely or intended to cause confusion about the owner or authorized user of materials.
5. APPLICABLE LAW. Subscriber is familiar with and agrees to be responsible for compliance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the Family Educational Rights and Privacy Act and the U.S. Department of Education’s implementing regulations at 34 CFR Part 99 (collectively, “FERPA”); and all other laws, rules, or regulations concerning the collection, use, and disclosure of Personal Information about End Users accessing the Services that are the subject of this Agreement (collectively, “Applicable Law”). “Personal Information” means any and all information that could, individually or when combined with other information, identify an individual.
6. SUBSCRIBER INFORMATION. All Personal Information concerning Subscriber and End Users (collectively, “Subscriber Information”) shall belong to the Subscriber. Subscriber assumes sole responsibility for:
- Providing notice to the extent required under COPPA or other Applicable Law in connection with the collection, use and/or disclosure of Personal Information from End Users;
- Obtaining verifiable prior parental consent as required under COPPA or other Applicable Law in connection with the collection, use, and/or disclosure of Personal Information obtained from End Users;
- Providing a reasonable means for parents to review Personal Information provided by End Users to the extent required by COPPA or other Applicable Law; and
- Establishing and maintaining reasonable procedures to protect the confidentiality, security, and integrity of the Personal Information.
With respect to any Subscriber Information, feedback, or other information or materials contributed by Subscriber or any End User to NLP through the Platform (“User Content”), Subscriber hereby represents and warrants to NLP that Subscriber has full right to provide such User Content and that such User Content shall not:
- Infringe any intellectual property rights of any third party or any rights of publicity, personality, or privacy of any person or entity;
- Violate any Applicable Law;
- Be defamatory, libelous, unlawfully threatening, or unlawfully harassing, or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Contain or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Be obscene, child-pornographic, or indecent;
- Violate any community or internet standard;
- Constitute misappropriation of any trade secret or know-how; or
- Constitute disclosure of any confidential information owned by any third party.
9. RESTRICTIONS ON USE. Subscriber 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:
- Creating or enabling the creation of derivative works, modifications, or adaptations of the Platform;
- Decompiling, reverse-engineering or disassembling the Platform;
- Distributing or disclosing the Platform to third parties;
- Removing or modifying any proprietary marking or restrictive legends placed on the Platform; or
- Using any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Platform.
12. 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”). Personal Information of End Users is considered Confidential Information of Subscriber. At all times the Receiving Party shall:
- 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;
- Not use the Disclosing Party’s Confidential Information other than as necessary to perform its obligations under this Agreement;
- Not disclose, distribute, or disseminate the Confidential Information to any third party (except to Representatives, as expressly permitted below); and
- 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.
13. REPRESENTATIONS AND WARRANTIES; DISCLAIMER. Each party represents and warrants that this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with its terms. NLP DOES NOT WARRANT THE COMPLETENESS, ADEQUACY, ACCURACY, OR USEFULNESS OF THE PLATFORM, THE SERVICES, OR ANY NLP CONTENT. THE PLATFORM, THE SERVICES, AND THE NLP CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL DEFECTS. NLP 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, NLP MAKES NO WARRANTY THAT:
- THE PLATFORM, THE SERVICES, OR ANY NLP CONTENT WILL MEET THE REQUIREMENTS OF SUBSCRIBER;
- THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
- THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; OR
- ANY ERRORS IN THE NLP CONTENT WILL BE CORRECTED.
NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY NLP, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES. To the extent that NLP 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.
15. INDEMNIFICATION. Subscriber shall indemnify, defend, and hold harmless NLP, its officers, directors, employees, agents, and employees 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 Platform by Subscriber or any End User, except to the extent that such claim arises from NLP’s negligence or willful misconduct.
16. 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.
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.