Virtual Animal Anatomy License Agreement

Virtual Animal Anatomy License Agreement

This License Agreement is a legal agreement between you or the employer or other entity on whose behalf you are entering into this agreement (“Licensee”) and The Board of Governors of the Colorado State University System, acting by and through Colorado State University, 200 West Lake St, Fort Collins, CO, USA (the “Licensor”) effective the date of the completed transaction.

In consideration of the mutual promises this Agreement contains, and other valuable and sufficient consideration, the Licensor and Licensee agree as follows:

  1. GRANT OF LICENSE
    • 1.1. Nature of Materials. The materials that are the subject of this Agreement are the cohort of Virtual Animal Anatomy programs, specifically the Virtual Canine Anatomy (VCA 4.0), and the development suite of Virtual Equine Anatomy (VEA), Virtual Bovine Anatomy, and Virtual Feline Anatomy programs. The suite of materials are determined by the content present at the time of the transaction.
    • 1.2. Grant of License. Licensor grants to Licensee non-exclusive, worldwide access to and use of the Licensed Materials, and the right to provide the Licensed Materials to Authorized Users (which are defined in Section 3, below) in accordance with this Agreement’s terms and conditions.
    • 1.3 Ownership of Intellectual Property. Nothing in this Agreement shall be interpreted to transfer ownership of any copyright, trademarks or service marks from the Licensor or its suppliers to the Licensee or Authorized Users. Licensor will include copyright, trademark and other notices in the Licensed Materials, and all works protected by copyright will have a copyright notice displayed to clearly distinguish any copyright in the compilation from any copyright in the underlying works.
  2. FEES AND TERM
    • 2.1 Fees and Payment. Licensee shall pay Licensor for the Licensed Materials pursuant to the terms set forth on the payment screen.
    • 2.2 Term. The Term of this License Agreement begins and ends on the dates indicated on the payment screen (the “Initial Term”). At the end of the Initial Term, in order to maintain access to the Licensed Materials, Licensee must confirm and pay fees for a new License (“Subsequent Term). The Initial Term and any Subsequent Terms are each separately a “Term” as used herein.
    • 2.3 Notice of Price Increases. Licensor shall display an updated price list for all Licensed Materials no less than sixty (60) days prior to June 30 of each year.
  3. AUTHORIZED USERS AND USES
    • 3.1 Authorized Users. The Licensor and Licensee define “Authorized Users” as the following:
      1. The Licensee’s full-time and part-time students, regardless of their physical location;
      2. The Licensee’s full-time and part-time employees (including faculty, staff, affiliated researchers, and independent contractors), regardless of their physical location. 
    • 3.2 Authorized Uses. The Licensee and Authorized Users may access or use the Licensed Materials for the following purposes:
      1. Usage Rights. Licensee and Authorized Users may electronically display, screen capture, and print a reasonable portion of the Licensed Materials. Licensee may charge a reasonable fee to recover costs of copying or printing portions of Licensed Materials for Authorized Users.
      2. Education, Teaching and Research. Licensee and Authorized Users may extract and use excerpts from the Licensed Materials for teaching and other educational purposes, including screen capture and image manipulation for the purpose of illustration, explanation, example, comment, criticism, teaching and examinations within the population of Authorized Users.
    • Any use of Licensed Materials by Licensee or Authorized Users in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal will result in immediate termination of this agreement without a refund to the licensee for the remainder of the terms of the agreement.
  4. DELIVERY AND ACCESS
    • 4.1 Delivery. Licensor will provide the Licensed Materials as an application using the IMS Global Learning Consortium Learning Tools Interoperability (LTI) standard to be used with a platform such as a learning management system.
    • 4.2 Access and Authentication. Licensor will provide the Licensee and its Authorized Users with access to the Licensed Materials pursuant to the terms, conditions, and specifications set forth. Access to the Licensed Materials will be password protected for Authorized Users only as determined by the Licensee’s learning management system.
    • 4.3 Restrictions. Licensor and Licensee agree to the following use and access restrictions on the Licensed Materials.
      1. Unauthorized Use. Except as specifically provided elsewhere in this Agreement, Licensee shall not knowingly or intentionally permit anyone other than Authorized Users to use the Licensed Materials. Authorized Users may not share content in social media or with non-Authorized Users.
      2. Modification of Licensed Materials. Licensee shall not modify or create a derivative work of the Licensed Materials without the Licensor’s express, prior, and written permission. unless provided for elsewhere in this Agreement.
      3. Removal of Copyright or Trademark Notice. Licensee may not remove, obscure or modify any valid copyright or trademark notices included in the Licensed Materials.
      4. Commercial Purposes. Other than as specifically permitted in this Agreement, Licensee may not use the Licensed Materials for commercial purposes. This restriction expressly prohibits the Licensee from selling Licensed Materials. For the avoidance of doubt, research conducted by Licensee and Authorized Users that is supported by a commercial entity shall not be considered use for commercial purposes.
  5. PERFORMANCE OBLIGATIONS
    • 5.1 Licensor Performance Obligations. The Licensor will use reasonable efforts to ensure that its performance will meet or exceed industry standards and practices. Additionally, the Licensor agrees to the following performance standards.
      1. Availability of Licensed Materials. The Licensor will make the Licensed Materials available to the Licensee and Authorized Users within two weeks of the Transaction Date (“Effective Date”).
      2. Documentation. Licensor will provide full, complete, and up-to-date help and operational documentation for Licensee in an electronic format.
      3. Support. Licensor will provide activation and installation support, including assisting Licensee with the implementation, up to twenty (20) hours during the twelve (12) month period following Licensee’s purchase of the License. Licensor will offer reasonable levels of continuing support to assist Licensee in use of the Licensed Materials, as mutually agreed upon between the Parties, and subject to availability.
      4. Training. Licensor will reasonably provide to Licensee’s staff appropriate training relating to the use of the Licensed Materials and any Licensor software.
      5. Updates. Licensor will provide any regular system and project updates to Licensee as they become available, including any potential corrections of erroneous content. This does not include the addition of Animal Anatomy program modules beyond those that were part of the content present at the time of the transaction.
      6. Quality of Service. Licensor shall use reasonable efforts to ensure that the Licensor’s server or servers have sufficient capacity and rate of connectivity to provide the Licensee and Authorized Users with access to Licensed Materials.
      7. Problems with Licensed Materials in the First 30 Days of a Term. In the first thirty (30) days following purchase of the License, the Licensor will assist the Licensee to test and ensure that the Licensed Materials are functioning appropriately on local systems. During the thirty (30) day period, should Licensed Materials fail to operate, display, load, or render in conformance with the terms of this Agreement, the Licensee shall immediately notify Licensor, and Licensor shall promptly use reasonable efforts to assist with restoration access to the Licensed Materials as soon as possible. In the event that the non-conformity materially affects the Licensee’s or Authorized Users’ use of the Licensed Materials, and Licensor is unable to repair the nonconformity within five (5) business days, Licensor shall reimburse Licensee for such problems in an amount proportional to the total fees Licensee paid to Licensor for purchase of the License.
      8. Notification of Modifications of Licensed Materials. Licensor may add, change, or modify portions of the Licensed Materials, or migrate the Licensed Materials to other formats. When such changes, modifications, or migrations occur, the Licensor shall post notice of any such changes on the Licensor’s website.
      9. Withdrawal of Licensed Materials. Licensor reserves the right to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to 4 publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. Licensor shall give written notice of the withdrawal to the Licensee as soon as is practicable, but in no event less than thirty (30) days in advance of withdrawal, specifying the item or items to be withdrawn.
      10. Usage Statistics. Licensee shall provide Licensor bi-annual usage statistics for the Licensed Materials. Statistics shall meet or exceed the most recent project Counting Online Usage of NeTworked Electronic Resources (COUNTER) Code of Practice Release, including but not limited to its provisions on customer confidentiality. When a release of a new COUNTER Codes of Practice is issued, Licensee shall comply with the implementation time frame specified by COUNTER to provide use statistics in the new standard format. Usage statistics provided to Licensor may also be provided in the form of course enrollment numbers, student surveys for assessment of Learning Ecologies and student outcomes following program use. Licensor shall not provide Licensee’s usage statistics in any form to any third party without the Licensee’s written authorization, unless the third party owns rights in the Licensed Materials. In all cases, the disclosure of such data shall fully protect the anonymity of individual users and the confidentiality of their searches, and will comply with all applicable privacy laws. The Licensor shall not disclose or sell to other parties usage data or information about the Licensee or its Authorized Users without the Licensee’s express written permission or as required by law. The Licensor retains all rights to publish such usage statistics in scholarly journals or in other venues, including advertisements or for publicity.
      11. Confidentiality of Personally Identifiable Information. The Licensed Materials do not collect personally identifiable information, therefore, the Licensor has no access to the Authorized User’s personally identifiable information including but not limited to log-ins recorded in system logs, IP addresses of patrons accessing the system, searches, or usernames and passwords.
    • 5.2 Licensee Performance Obligations. The Licensee agrees to the following performance standards.
      1. License Terms Notice. Licensee will use reasonable efforts to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Licensed Materials is granted under this Agreement.
      2. Protection from Unauthorized Use. Licensee will use reasonable efforts to restrict access to the Licensed Materials to Authorized Users.
      3. Maintaining Confidentiality of Access Passwords. Where access to the Licensed Materials is to be controlled by use of passwords, Licensee will use reasonable efforts to inform Authorized Users that they should not divulge their numbers and passwords to any third party. Licensee will also use reasonable efforts to maintain the confidentiality of any institutional passwords provided by Licensor.
    • 5.3. Mutual Performance Obligations. In addition to their respective, specific performance obligations, the Licensor and Licensee agree to be bound by the following performance standards.
      1. Notification of Unauthorized Use. In the event the Licensee has notice of an unauthorized use of the Licensed Materials and cannot promptly remedy it, the Licensee shall immediately notify the Licensor. In the event the Licensor has notice of unauthorized use of the Licensed Materials by Licensee or through unauthorized use stemming from Licensee, the Licensor will immediately notify Licensee, and Licensee will cooperate with the Licensor to address the unauthorized use and avoid a recurrence.
  6. WARRANTIES Nothing in this Agreement shall be construed as a warranty or representation that any Licensed Materials will be free from infringement of the intellectual property of any third party. The Licensee uses the Licensed Materials at its own risk, and such Licensed Materials are provided hereunder AS-IS with any inherent flaws. All warranties, express and implied, are hereby expressly disclaimed INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  7. MISCELLANEOUS:
    • 7.1. Refunds. Except when required by law, Licensor shall be under no obligation to issue refunds under any circumstances.
    • 7.2. Authority to Contract. If you are entering into these terms on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Licensor for any breaches of the terms of this agreement.
    • 7.3. Severability. If any individual term in this Agreement is found to be invalid or unenforceable by any legal or regulatory body of competent jurisdiction, such finding will be limited solely to such invalid or unenforceable part, without affecting the remaining parts of such individual term, or any other part of the Agreement, so that these terms shall otherwise remain in full force and effect.
  8. LIMITATION OF LIABILITY:
    • 8.1 No Warranty. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED MATERIAL, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF CUSTOMER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • 8.2 Governmental Immunity. Each party hereto agrees to be responsible for its own wrongful or negligent acts or omissions, or those of its officers, agents, or employees to the full extent allowed by law. Liability of the Licensor is at all times herein strictly limited and controlled by the provisions of the Colorado Government Immunity Act, C.R.S. secs. 24-10-101, et seq. as now or hereafter amended. Nothing in this Agreement shall be construed as a waiver of the protections of said Act.
  9. LAW AND VENUE This Agreement shall be governed by the laws of the state of Colorado, without regard to any choice-of law provisions. Any controversy or claim arising out of relating to this Agreement, or the breach thereof, shall first attempted to be resolved between the parties. If after thirty (30) days of good faith effort, and any and all disputes arising hereunder shall be resolved in the courts of the State of Colorado. Any litigation arising out of or relating to this Agreement shall be conducted by a court of competent jurisdiction in the State of Colorado. Licensee agrees to avail itself of such courts. Nothing herein shall be construed as a waiver of sovereign immunity.