In consideration for User’s access to the Curriculum (defined below) and for other good and valuable consideration including the educational value provided therein, the receipt and sufficiency of which are hereby acknowledged, the parties, including to be legally bound agree as follows:
- Linking to the Curriculum. User is permitted to include a hyperlink to or otherwise make the Curriculum materials available to other Persons through User’s own website or social media network. User shall not hyperlink to the Curriculum in any manner, which in any way suggests that User rather than Hillsdale is the source of the Curriculum materials. User may include a hyperlink to the Hillsdale College website to enable others to register with Hillsdale to use the Curriculum, but must do so in a way that does not suggest any form or association, approval or endorsement on Hillsdale’s part without the prior express written consent of Hillsdale College. You agree to cooperate with Hillsdale in causing any unauthorized framing or hyperlinking to immediately stop. Hillsdale reserves the right to withdraw linking permission without notice. For purposes of this Agreement, the term “Persons” means any sole proprietorship, limited liability company, profit or non-profit corporation, academic institution, joint venture, partnership, association, trade group, club, organization of any one or more individuals, or an individual.
- Freedom of Information Act & Related Actions. This Section 11 only pertains to the extent a User is subject to the Freedom of Information Act (“FOIA”), a state open meetings or a state open records act. In the event that any request is made to User under FOIA, a state open meetings act, or an open records act (each, an “Information Request”) as to any Curriculum or confidential or proprietary information related to Hillsdale, the User shall (i) immediately notify Hillsdale of an Information Request to photograph, record or otherwise make copies of any of Curriculum, (ii) provide Hillsdale an opportunity to first decide if any such copies are being requested or prepared as “fair use” of the Curriculum under prevailing copyright laws; (iii) prohibit copying of the Curriculum without either Hillsdale’s consent or entry of an order requiring reproduction; (iv) notify Hillsdale of any suit filed to compel the production of copyrighted materials, including the Curriculum; and, (v) fully cooperate with Hillsdale to protect the confidentiality and proprietary nature of such Curriculum. In the event that Hillsdale decides to resist the Information Request, it agrees to do so at its own expense and indemnify User as to any liability that might flow from User following Hillsdale’s directions in resisting or seeking clarification of the Information Request obligations and the statutory authority thereof. The foregoing provision shall not be construed to encourage or otherwise require Institution to violate any applicable law.
- Disclaimer of Warranties. THE CURRICULUM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO GUARANTEE OR WARRANTY REGARDING COMPLETENESS, ACCURACY OR TIMELINESS. HILLSDALE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO ANY COPYRIGHT, TRADEMARK, OR PUBLICITY INFRINGEMENT WITH RESPECT TO THE CURRICULUM. HILLSDALE DOES NOT WARRANT THAT ACCESS TO OR USE OF THE CURRICULUM OR ANY INFORMATION PROVIDED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE. HILLSDALE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF AVAILABILITY, PERFORMANCE, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY IMPLIED BY STATUTE OR COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
- Limitation of Liability. EXCEPT WITH RESPECT TO HILLSDALE’S INDEMNIFICATION OBLIGATION IN SECTION 11 (AS APPLICABLE), HILLSDALE SHALL NOT BE LIABLE TO USER OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, OR ANY OTHER SIMILAR TYPE OF LOSS, ARISING DIRECTLY OR INDIRECTLY OUT OF USER’S USE OF THE CURRICULUM OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF LEGAL THEORY AND WHETHER THE CLAIM IS BASED IN CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR SOME OTHER THEORY OF LIABILITY AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE OR HILLSDALE WAS WARNED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL HILLSDALE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN RELATION TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY USER TO HILLSDALE FOR THE LICENSE TO THE CURRICULUM.
- Survival. The parties agree that Sections 3, 4, 5, and 8 through 22 shall survive termination or expiration of this Agreement.
- Jury Trial Waiver. USER HEREBY ACKNOWLEDGES AND AGREES TO WAIVE ANY CONSTITUTIONAL AND STATUARY RIGHT THAT USER MAY HAVE UNDER ANY APPLICABLE LAW TO MAINTAIN A LAWSUIT IN A COURT AND BEFORE A JUDGE AND JURY.
- Class Action Waiver. USER AGREES THAT ANY DISPUTES SHALL BE ASSERTED IN USER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, THE PARTIES HERETO EACH AGREE THAT EXCEPT AS OTHERWISE PROVIDED IN SECTION 10, ANY DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION AND THAT AN ARBITRATOR MAY AWARD RELIEF ONLY ON AN INDIVIDUAL BASIS.
- a. Individuals. TO THE EXTENT USER IS AN INDIVIDUAL AND USING THE CURRICULUM FOR PERSONAL USE, PLEASE NOTE THAT THIS SECTION CONTAINS AN ARBITRATION CLAUSE THAT IS APPLICABLE TO YOU AND THAT YOU ARE WAIVING ANY RIGHT THAT YOU MAY HAVE TO HAVE YOUR DISPUTES HEARD IN COURT AND IN FRONT OF A JUDGE.
- EXCEPT AS OTHERWISE PROVIDED IN SECTION 10, ANY DISPUTE, CLAIM, CONTROVERSY, MATTER OF INTERPRETATION, OR OTHER MATTER (COLLECTIVELY, “DISPUTES”) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT SHALL BE SUBJECT TO BINDING ARBITRATION, CONDUCTED ON A CONFIDENTIAL BASIS AND ADMINISTRATED BY THE AMERICAN ARBITRATION ASSOCIATION AND BEFORE A SINGLE ARBITRATOR IN ACCORDANCE WITH THE CONSUMER ARBITRATION RULES (THE “RULES”).
- The arbitration location shall be in Hillsdale, Michigan. Except as otherwise required by applicable law, no party shall disclose the existence, content, or results of any arbitration under this section. The federal rules of evidence shall apply to the arbitration proceedings and be governed by the laws of the State of Michigan. The arbitrator’s decision shall be final, binding and non-appealable and judgment on the decision may be entered in any court having jurisdiction thereof.