Houghton Mifflin Harcourt ("HMH" "we" or "us") has developed an online educational software application (the "Software") that includes interactive features allowing educators to create, upload, and post materials to specified areas on an online platform hosted on servers owned or controlled by HMH (the "Platform"). Such interactive features will also include allowing educators to assemble multi-step lessons, which may be comprised of user generated Web links, user-uploaded files, links to HMH content, and user entered text.
To assist you in using our Software and associated Services (as defined below), and to ensure a clear understanding of the relationship arising from your use of our Platform and participation in these Services, we have created this License and Terms and Conditions of Use (the "Terms"). Our Terms govern your use of our Platform, and contributions you may make to the Platform. Our Terms apply to any user of the Platform, including (i) institutions, including schools and school districts that download the Software and make the Software available for teachers and students to use, and (ii) teachers and educators who use the Platform to contribute content and otherwise participate in our Services (collectively, "you" or"Users").
Please read these terms of use carefully. By accessing or using the Platform , you acknowledge that you have read, understand and agree to be bound by these Terms, just as if you had signed these Terms. If you do not wish to be bound by these Terms, please do not download the Software, and do not access the Platform.
- 1. Our Services; Overview
The Software provides our Users with online educational services designed to allow users to create and obtain access to a wide range of tools that facilitate the creation of lesson and related content, and to download and use such content on compatible devices in accordance with the Platform's functionality and associated documentation (the "Services"). The term "User Content" means information, materials and data that Users upload to the Platform, other than HMH Content (as defined below). Users may also be provided access to the Platform's Interactive Services (as defined below) to enable collaboration (including, but not limited to, sharing User Content) with other Users within the same school . Additionally, we may provide services that allow Users (i) to combine his or her User Content with the content of other Users, and (ii) to combine User Content with HMH Content (as defined below).
- 2. HMH's Grant Of Rights To You
In this Section 2 (HMH's Grant of Rights to You), HMH gives Users the rights and privileges they will need to participate in our Services.
- 2.1. Rights To Access And Participate In Services
Subject to your compliance with these Terms, HMH hereby grants Users the right to access and use the Platform (including the Software) in accordance with the Platform's functionality and associated documentation, and to participate in the Services.
- 2.2. Rights To Edit HMH Content
Subject to your compliance with these Terms, HMH grants to Users, a limited, non-exclusive, royalty-free, non-transferable license to use, copy, and modify HMH Content (as defined below) for the sole purpose of: (i) creating lessons and enrichment programs, including by combining User Content with HMH Content, and (ii) otherwise using HMH Content and User Content as intended by the Platform's functionality and in accordance with the applicable purchase agreement between you (or your institution) and HMH. Without HMH's written permission (which HMH may withhold in its discretion), a User shall not use HMH Content (or information derived therefrom) for commercial purposes.
- 2.3. HMH Ownership; Reservation Of Rights
Except for User Content, all content available on or through the Platform including all information, software, artwork, text, video, audio, pictures, trademarks, trade dress, and other intellectual property found on the Platform, or embodied in the Services, is the proprietary property of HMH and its licensors ("HMH Content"). HMH Content and derivative versions thereof are protected by U.S. and international copyright and other intellectual property laws, and HMH retains all rights with respect to HMH Content, the Platform, and the Services, except those expressly granted to you in these Terms. You agree not to duplicate, publish, display, distribute, modify, or create derivative works from the material on the Platform except as expressly allowed in Section 2.1 (Rights to Access and Participate in Services) and Section 2.2 (Rights to Edit HMH Content), unless specifically authorized in writing by HMH.
- 2.1. Rights To Access And Participate In Services
- 3. Additional Rights And Obligations Of Users
Users are invited to search for, retrieve, view and contribute User Content on the Platform as permitted by these Terms. The following specific provisions govern these activities in greater detail.
- 3.1. Your Grant Of Rights To HMH
Subject to HMH's ownership of HMH Content set out in Section 2.3 (HMH Ownership; Reservation of Rights), User Content, as well as feedback, information, or contributions you include in the interactive areas of the Platform, is your proprietary property (or the property of third parties), and HMH does not claim ownership of the User Content that you post or otherwise provide through the Service. In consideration of the Services, you hereby grant us a royalty-free, sublicensable, non-exclusive, worldwide license, under your intellectual property rights, to use, copy, reformat, index, modify, display, and distribute User Content for purposes of providing our Services and the Platform. No compensation will be paid with respect to our use of your User Content under this grant.
- 3.2. Your Grant Of Rights To Other Users
By uploading User Content you hereby grant to all users accessing your User Content in accordance with these Terms, a royalty-free, non-exclusive, worldwide license, under your intellectual property rights, to use, copy, reformat, index, modify, display, and distribute your User Content for purposes of participating in the Services and engaging in other activities consistent with our Conduct Requirements and these Terms. This grant is in further consideration of the Services, and no compensation will be paid with respect to other users' use of User Content under this grant.
- 3.3. Rights You Must Have In User Content
When you provide User Content or otherwise create User Content, you represent and warrant: (i) that you hold all rights needed to grant rights under Section 3.1 (Your Grant of Rights to HMH) and Section 3.2 (Your Grant of Rights to Other Users); (ii) that you own the copyright in all User Content subject to copyright protection (or have been given needed permissions by the copyright owner, or use the User Content under "fair use" principles); and (iii) that you otherwise have the required permissions to use and permit others to use the User Content in the manner set out in this Section 3 (Additional Rights and Obligations of Users).
- 3.4. Termination Of Rights; Survival
The licenses granted to us and to our community of users in this Section will terminate prospectively at the time you completely remove User Content from our Platform. This termination will not affect licenses to User Content granted before the time you completely remove the content, and our users (as well HMH) will continue to enjoy their rights under Section 3.1 (Your Grant of Rights to HMH) and Section 3.2 (Your Grant of Rights to Other Users).
- 3.1. Your Grant Of Rights To HMH
- 4. Reservation Of Rights And Ownership
HMH reserves all rights not expressly granted to you in these Terms. The Software is protected by copyright and other intellectual property laws. HMH or its licensors own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold.
- 5. Limitations On Reverse Engineering, Decompilation, And Disassembly
You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- 6. Other Conduct Requirements
Our Platform may provide interactive chat and messaging functionality and other services that allow you to interact with other Users ("Interactive Services"). As a condition to your use of the Platform, the Services, and the content available through the Platform, including the Interactive Services, you agree to follow our Conduct Requirements, set out below. Under these Conduct Requirements, you will not:
- Upload, link to, or otherwise transmit any images or other content that are unlawful, obscene, harmful, hateful, invade the privacy of any third party, contain nudity or pornography, or are otherwise objectionable.
- Disseminate materials that impact or invade the privacy of others, such as photographs, video clips, sound recordings, personally identifiable information, or other materials that reveal personal, private or sensitive information about another person, without that person's consent.
- Submit material that is intentionally false, defamatory, unlawfully threatening, or unlawfully harassing.
- Infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy. Electronic materials — such as Content, images, and text in electronic form — can easily be copied, modified and sent over networks (such as the Internet). These electronic materials are thus extremely vulnerable to unauthorized distribution and copyright infringement. These materials may not be transmitted over the Platform without the copyright owner's permission, or without a legitimate "fair use" justification for the transmittal.
- Transmit materials that contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer-programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
- Seek to use for financial gain the Platform, related computer facilities, or information available on the Platform.
- Use the Service to artificially generate traffic or page links for any other purpose not expressly allowed under these Terms.
- Use the Platform in a manner that could disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of the Platform.
- Seek to obtain access to any materials or information through "hacking," "data harvesting," or through other means we have not intentionally made available to you through the Platform.
- Use the Platform for any purpose that is unlawful or prohibited by these Terms. For example, you will not use the Platform, Services, or content to violate any law, statute, or regulation.
We will enforce the above Conduct Requirements wherever we deem necessary. Please understand, however, that HMH does not control — and does not necessarily endorse — the Content found in any Interactive Service. When you participate in the Interactive Services, you do so at your own risk, and we expressly disclaim responsibility for the Content found in these Services.
- 7. Monitoring; Removing Postings
We expect each user of our Platform to act responsibly, and to respect the rights of others. We seek to protect the integrity and security of our computing systems, and the right to protect our community of users from claims of intellectual property infringement and other claims or threats, such as those detailed in our Conduct Requirements. Toward these ends, we reserve the right in our discretion (i) to monitor your use of the Platform, and your User Content and User Content transmitted through the Platform, (ii) to restrict or foreclose access to certain areas of the Platform or other resources, and (iii) to take other actions we deem necessary to protect our community of users and our resources. Due to this monitoring, you cannot expect that communications through our Platform will remain "private" or otherwise free of our review. Please refer to our Privacy Policy for a precise statement concerning your expectations of privacy.
- 7.1. Filters; Blocking And Removal Of Content
Although we have no — and assume no — obligation to monitor activities on our Platform, please understand that we may employ filters designed to detect and block the transmission of messages or other content that contain inappropriate language. We reserve the right to edit, to refuse to post, or to remove any information or materials, in whole or in part, that we believe, in our sole discretion, are incompatible with the Conduct Requirements.
- 7.2. Revocation Or Suspension Of Use Privileges
We reserve the right at any time to terminate or suspend your access to some or all of the Interactive Services, other Services, or the Platform itself if you engage in activities that we conclude, in our discretion, breach the Conduct Requirements.
Users should also understand that the Conduct Requirements are based in many instances on principles of state and federal law. HMH reserves the right at all times to disclose information it deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, consistent with our Privacy Policy.
- 7.1. Filters; Blocking And Removal Of Content
- 8. Disputes and Claims of Infringement
- 8.1. Allegations of Copyright Infringement
HMH respects the intellectual property rights of others and requires that its users do the same. If you believe that content on the Platform or other activity taking place on the Platform constitutes infringement of a work protected by copyright, please notify our agent, designated under the Digital Millennium Copyright Act (17 U.S.C. §512) to respond to such concerns, as follows:
Attention: Trevor Crippen
222 Berkeley Street
Boston, MA 02116
Copyright@hmhpub.comYour notice must comply with the DMCA. Upon receipt of a compliant notice, we will respond and proceed in accordance with the DMCA, including its notice and takedown provisions.
- 8.2. Resolution Structure; "Cooling Off" Period And Discussions
If you have a dispute or complaint concerning User Content, Services, a User's compliance with licensing terms, or the conduct of another User does not fall under Section 8.1 (Allegations of Copyright Infringement) (a "Dispute"), you agree to proceed as follows: (i) you will prepare a brief submission concerning the Dispute, consisting of (a) a brief written summary of your view of the Dispute, including the relief you seek, and (b) an appendix with materials you believe are relevant to the Dispute (the "Submission"); (ii) we will forward your Submission to the other Users involved in the Dispute, and request similar Submissions from them; (iii) you will then review the exchanged Submissions and, for a period of thirty (30) days (commencing on receipt of the last-circulated Submission), you will engage in good faith negotiations to seek to resolve the Dispute (collectively, the "Cooling Off and Discussion Period").
If you are requested to respond to a Dispute, in the manner outlined above, you agree to complete in good faith the Cooling Off and Discussion Period, as described above.
- 8.3. Recourse If A Dispute Remains Unresolved
If a Dispute cannot be resolved to the parties' reasonable satisfaction despite their good faith participation in these dispute resolution mechanisms then each party to the dispute remains free to pursue relief through the court system or other more formal system. HMH, at its sole discretion, however, shall remain entitled to enforce its rights under Section 7.2 (Revocation or Suspension of Use Privileges) against any and all parties in the Dispute for violating the Terms or our Conduct Requirements.
- 8.4. Our Legal Role: A Facilitator But Not A Participant
You are solely responsible for your interaction with other Users, both online or offline. We may provide dispute resolution mechanisms to assist our users in resolving Disputes that arise over content (such as online mediation services), and we may monitor Disputes between you and other Users, but we have no obligation to become involved.
- 8.1. Allegations of Copyright Infringement
- 9. Passwords
- 9.1. Obtaining A Password
When you register as a user of our Platform, you will be provided, or will be prompted to choose a password. Individuals who you permit to download the Software must use this password to access the Services on the Platform.
- 9.1. Protecting Your Password
Please keep in mind that we will treat anyone who uses your password as "you." We will provide this user with all of the rights and privileges that we provide to you, and we will hold you responsible for the activities of a person using your password. Therefore, we recommend that you maintain your user id and password in confidence, and that you refrain from disclosing this information to anyone who might "pretend" to be you with respect to the Services and your participation on our Platform. We also ask that you notify us immediately if you suspect that someone is using your password in this manner.
- 9.1. Obtaining A Password
- 10. Links To Third Party Platforms
HMH is not responsible for the content of any third-party Platforms or services or any links contained in third-party Platforms or services. The inclusion of any link or access does not imply an endorsement by HMH of the third-party Platform or service.
- 11. Privacy And Your Disclosure Of Information While Using Interactive Services
We value your privacy and the privacy of all our users. Please review our Privacy Policy for information on how we collect, use, and protect your personally identifiable information. These protections, however, do not apply to information you choose to disclose to other Users while participating in any Interactive Services. Although Users are bound, under the Conduct Requirements, to refrain from disseminating information from our Platform without permission, we cannot assure you that this will be the case. Therefore, you should disclose personally identifiable information advisedly. Please review our Privacy Policy for more information.
- 12. Warranty Disclaimer
HMH does not promise that the Platform will be error-free or uninterrupted, or that the Platform will provide specific results from your use of any Content on the Platform. The Platform, and all Services and content within them are delivered by HMH on an "AS IS" basis. HMH does not warrant or represent that materials you download from the Platform will be free of viruses or other harmful features.
HMH DISCLAIMS (i) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, OR LEGALITY OF INFORMATION AVAILABLE ON THE PLATFORM OR IN HMH CONTENT; AND (iii) ANY RESPONSIBILITY OR LIABILITY FOR HARM RESULTING FROM DOWNLOADING OR ACCESSING INFORMATION ON THE PLATFORM, INCLUDING HARM CAUSED BY VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT USE OF THE HMH PLATFORMS AND RELATED SERVICES IS AT YOUR SOLE RISK WITH RESPECT TO HMH.
- 13. Limitation Of Liability
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT, OR NEGLIGENCE, WILL HMH BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT ARISE OUT OF OR ARE RELATED TO YOUR USE OF THE PLATFORM, THE SERVICES, OR THE HMH CONTENT.
You agree that injunctive relief shall provide you with a good and sufficient remedy for any complaints against HMH arising out of its Services, and agree that you will not subsequently claim that such remedy or the remedy and damages limitations provisions of these Terms have "failed of their essential purpose."
- 14. Indemnity
To the maximum extent permitted by law, you agree to defend, indemnify, and hold HMH and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any liability to third parties, including reasonable attorneys' fees, arising from or related to your breach of these Terms.
HMH recognizes that schools and other entities may be exempted by law from certain indemnification obligations including those set out in this Section 144 (Indemnity). The indemnification obligations set out in this section do not apply to applicable exempted schools and other entities.
- 15. Additional Software/Services
These Terms apply to updates, supplements, add-on components of the Software that HMH may provide to you or make available to you after the date you obtain initial access to the Software, unless they are accompanied by separate terms.
- 16. Not For Resale Software
This Software may not be sold or otherwise transferred for value, or used for any other commercial purpose.
- 17. Software Transfer
You may transfer your copy of the Software to a different device. If you are the person who initially downloads the Software, you may make a transfer of this Agreement and Software to another end user, provided that the transfer includes all of the Software (including all component parts, printed materials, any upgrades, and these Terms). Prior to the transfer, the end user receiving the Software must agree to these Terms.
- 18. Duration Of Rights; General Termination
Without prejudice to any other rights, HMH may terminate this Agreement if you fail to comply with these Terms. In such event, you must remove all copies of the Software and all of its component parts from your device. Subject to Section 3.4 (Termination of Rights; Survival) you will continue to enjoy your rights and to owe obligations under these Terms until (i) you cease your use of the Services, or (ii) your password is revoked or suspended for misconduct, as set out in Section 7.2 (Revocation or Suspension of Use Privileges).
- 19. Duration Of Terms; Survival
The following provisions shall survive the termination of these Terms and shall apply indefinitely:
- Section 2.3 (HMH Ownership; Reservation of Rights)
- Section 3.4 (Termination of Rights; Survival)
- Section 122 (Warranty Disclaimer)
- Section 133 (Limitation of Liability)
- Section 144 (Indemnity)
- Section 188 (Duration of Rights; General Termination)
- Section 18 (Duration Of Rights; Survival)
- 20. Relationship To Privacy Policy And Other Contracts
These Terms must be read in conjunction (i) with other agreements into which you may enter concerning our Platform, and (ii) with our Privacy Policy. The provisions of our Privacy Policy are incorporated herein. To the extent these Terms conflict with the terms of our Privacy Policy, the terms of our Privacy Policy will control. Similarly to the extent these Terms conflict with the terms and conditions of any specific agreement you enter with us, the terms and conditions of such specific agreement will control.