Licensing Agreement

HAPPY Reading License Agreement For www.happyreading.org
HAPPY Reading, 501(C)3 

 
  1. Content of Licensed Materials: Grant of License 

The materials that are the subject of this Agreement shall consist of Licensor’s proprietary database of instructional reading material (hereinafter referred to as the “Licensed Materials”). Licensee and its Authorized users acknowledge that the copyright and title to the Licensed Materials and any trademarks or service marks relating thereto remain with Licensor and/or its suppliers. Neither Licensee nor its Authorized Users shall have any right, title or interest in the Licensed Materials except as expressly set forth in this Agreement. 

Licensor hereby grants to Licensee non-exclusive and non-transferable use of the Licensed Materials and the right to provide the Licensed Materials to Authorized users in accordance with this agreement. 

  1. Fees 

Individuals or representatives of organizations shall make payment for one year of use of Licensed Materials or for a longer licensing period, as agreed upon by the parties, through the designated payment services provided on the www.happyreading.org website. The price will be the current, published on-line price for a one-year license, unless otherwise indicated by Licensor. 

Licensee agrees to pay and be responsible for any and all sales taxes, use taxes, value added taxes, or other such taxes imposed by any jurisdiction as a result of the license granted to you or of your use of any Licensed Materials, pursuant to this Agreement. 

III. Authorized Use of Licensed Materials 

Authorized Users: 

Authorized Users are the Licensee, who may be an individual or an organization as follows: 

A teacher of an individual classroom and no more than 40 students enrolled in that teacher’s classroom; 

A reading professional within a school and no more than a total of 50 students working with that professional within the school or schools served by that educator; 

An adult in a private residence and no more than three additional adults and no more than 20 learners who are all residents within that household; 

A school (with one representative acting as Contact to the Licensor), when a separate fee has been paid for each, individual classroom to utilize Licensed Materials for no more than 40 students enrolled in each teacher’s classroom; 

A school division (with one representative acting as Contact to the Licensor for each participating school), when a separate fee has been paid for each, individual classroom to utilize Licensed Materials for no more than 40 students enrolled in each teacher’s classroom; 

A community organization, service organization or a for-profit or non-profit business not described above (with one representative acting as Contact to the Licensor), with no more than ten additional adults and no more than 50 additional learners. 

Where the number of users will exceed the parameters designated in this agreement, additional licensing arrangements must be made between Licensee and Licensor. 

The only allowable exceptions to the Authorized User Agreement is that Licensor will allow parents, guardians and volunteers working with learners who are included in the above Authorized User to have access to printed documents from www.happyreading.org to further the working goals of the Licensees and included learners. 

These are the only Authorized Users. This Agreement is personal to the Licensee and covers Authorized Users only. It is not assignable by Licensee without prior written consent of the Licensor. Licensor retains the right to assign this Agreement to any other party, so long as such party agrees to be bound by its terms. 

Authorized Uses of Licensed Materials: 

Authorized use includes home and classroom use for educational and instructional purposes to further the literacy development of learners who are Authorized Users. 

Public performances of poems and reader’s theater scripts, on the condition of proper attribution to www.happyreading.org

All printed and digital materials must continue to bear the name of HAPPY Reading and www.happyreading.org wherever they appear and as they appear in the original content. 

  1. Unauthorized Use of Licensed Materials Unauthorized Use: 

Licensee shall not knowingly permit anyone other than Authorized Users to use the Licensed Materials. 

Modification of Licensed Material: 

Licensee shall not modify or create a derivative work of the Licensed Materials without prior, written permission of the Licensor. 

Removal of Copyright Notice: 

Licensee may not remove, obscure or modify any copyright or other notices included in the Licensed Materials. 

Commercial Purposes: 

Other than is specifically permitted in this Agreement, Licensee may not use the Licensed Materials for commercial purposes, including but not limited to the sale of the Licensed Materials or bulk reproduction or distribution of the Licensed Materials in any form. The exception to this provision is that schools and other non-profit organizations may use the Licensed Material for public performance at authorized organizational functions for which there is an admission charge, on the condition of proper attribution to www.happyreading.org and on the condition that all funds generated are used to further appropriate educational objectives of the organization. 

  1. Licensor Performance Obligations 

Availability of Licensed Materials: 

Within five (5) business days of the effective date of this Agreement, Licensor shall make the Licensed Materials available to the Licensee and Authorized Users. 

Support: 

Licensor will make its personnel available by electronic mail, telephone or facsimile communication to answer questions, problem-solve and to provide general assistance to Licensee in use of the Licensed Materials. 

Quality of Service: 

Licensor shall use reasonable efforts to ensure that Licensor’s server or servers have sufficient capacity and rate of connectivity to provide the Licensee and its Authorized users with a quality of service comparable to current standards for electronic dissemination of educational materials. 

Licensor shall use reasonable efforts to provide continuous service seven (7) days a week with an average of 95% up time per month. The 5% down time includes periodic unavailability due to maintenance of the server(s), the installation or 

testing of software, the loading of additional Licensed Materials as they become available, and down time related to any failure of equipment or services outside the control of Licensor, including but not limited to public or private telecommunication services or internet nodes or facilities. Scheduled down time will be performed at a time at a time to minimize the inconvenience to Licensee and its Authorized Users. Licensor shall notify Licensee in a timely manner of all instances of system unavailability that occur outside the Licensor’s normal maintenance window and use reasonable effort to provide advance notice of hardware or software changes that may affect system performance. 

If the Licensed Materials fail to operate in conformance with the terms of this Agreement, Licensee shall immediately notify the Licensor and Licensor shall promptly use reasonable efforts to restore access to the Licensed Materials as soon as possible. In the event that Licensor fails to repair the nonconformity in a reasonable time, Licensor shall reimburse Licensee for the nonconformity period such that the amount is proportional to the total fees owed by Licensee under this Agreement. 

Notification of Modifications of Licensed Materials: 

Licensee understands that from time to time the Licensed Materials may be added to, modified or deleted from by the Licensor. Licensor shall provide Licensee with sufficient notice in advance of such changes. Further, Licensor shall notify Licensee as soon as possible when URL and server domain names that affect the Licensee’s access are modified. 

  1. Licensee Performance Obligations 

Provision of Notice of License Terms to Authorized Users: 

Licensee shall make 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, including any limitations on access or use of the Licensed Materials as set forth in this Agreement. 

Protection fro Unauthorized Use: 

Licensee shall implement reasonable procedures to restrict access to the Licensed Materials to Authorized Users. Licensee agrees to enforce compliance with the provisions of this Agreement. 

Maintaining Confidentiality of Access Passwords: 

Licensee and shall maintain the confidentiality of any institutional passwords provided by the Licensor. 

VII. Mutual Performance Obligations 

Cure Activities: 

In the event of any unauthorized use of the Licensed Materials by an Authorized user, Licensee shall cooperate with Licensor in the investigation of any unauthorized use of the Licensed Materials of which it is made aware and shall use reasonable efforts to remedy such unauthorized use and prevent the recurrence of unauthorized use. Licensor terminate such Authorized User’s access to the Licensed Materials after first providing reasonable notice to Licensee (of at least 10 business days) and cooperating with the Licensee to avoid recurrence of unauthorized use. 

Confidentiality of User Data: 

Licensor agrees to maintain the confidentiality of any data relating to the usage of the Licensed Materials by Licensee and its Authorized Users. Licensee agrees to maintain the confidentiality of any data relating to the usage of the Licensed Materials by individual Authorized Users and agrees not to share this information with third parties. Information relating to the identity of specific users and/or uses shall term be provided to any third party. 

VIII. Term 

This Agreement shall continue in effect for one (1) year, commencing from the effective date, unless otherwise stipulated by Licensor and agreed to by both parties. 

  1. Renewal 

This agreement shall expire at the end of the term, unless it is renewed by agreement of the parties. 

  1. Early Termination 

In the event that either party believes that the other has materially breached any obligations under this Agreement, or if the Licensor believes that Licensee has exceeded the scope of the License, such party shall so notify the breaching party in writing. The breaching party shall have thirty (30) days from receipt of the notice to cure the alleged breach and to notify the non-breaching party in writing that the cure has been effected. If the breach is not cured within the thirty (30) day window, the non-breaching party shall have the right to terminate the Agreement without further notice. 

In the event of Termination of this Agreement for cause, online access to the Licensed Materials by the Licensee and Authorized Users shall be terminated. Authorized copies of Licensed Materials must be destroyed within 30 days of such Termination. 

In the event of early Termination permitted by this Agreement, Licensee shall be entitled to a refund of any fees or prorated portion of the fees paid by Licensee for any remaining period of the Agreement from the date of Termination. 

  1. Warranties 

Subject to the Limitations set forth elsewhere in this Agreement: 

Licensor warrants that it has the right to license the rights granted under this Agreement to use Licensed Materials, that it owns all rights and/or has obtained all permissions from third parties to license the Licensed Materials, and that use of the Licensed Materials by Authorized Users in accordance with the terms of this Agreement shall not infringe the copyright of any third party. The Licensor shall indemnify and hold Licensee and Authorized Users harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney’s fees, which arise from any claim by any third party or an alleged infringement of copyright or any other property right arising out of the use of the authorized used of Licensed Materials by the Licensee or any Authorized User in accordance with the terms of this Agreement. This indemnity shall survive the termination of this Agreement. No limitation of this liability set forth elsewhere in this Agreement is applicable to this indemnification. 

XII. Limitations on Warranties 

Notwithstanding anything else in this Agreement: 

Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to the loss of data, business interruption, or loss of profits arising out of the use of or the inability to used the Licensed Materials. 

Licensor makes no representations of warranty, and expressly disclaims any liability with respect to the content of any Licensed Materials, including but not limited to errors or omissions contained theirein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights or the disclosure of confidential information. 

Except for the express warranties stated herein, the Licensed Materials are provided on an “as is” basis, and Licensor disclaims any and all other warranties, conditions or representations (express, implied, oral or written) pertaining to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of merchantability or fitness for a particular purpose. Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. 

XIII. Force Majeure 

Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control, including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected. 

XIV. Amendment 

No modification or claimed waiver of any provision of this Agreement shall be valid expect by written amendment signed by authorized representatives of Licensor and Licensee. 

  1. Severability 

If any provision or provisions of this Agreement shall be held to be invalid, illegal and unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 

XVI. Waiver of Contractual Right 

Waiver of any provisions herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. 

XVII. Entire Agreement 

This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written. 

XVIII. Acknowledgment 

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF HAPPY READING (www.happyreading.org) UNDER THE GOVERNANCE OF HAPPY READING, 501(C)3, AGREEING TO PROVIDE THE LICENSED MATERIALS, IN THE FORM OF 

DOWNLOADABLE, INSTRUCTIONAL CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES. YOU ACKNOWLEDGE THAT BY COMPLETING THE PAYMENT OF THE REGISTRATION FEE, YOU ARE AGREEING TO ALL TERMS AND CONDITIONS SET FORTH THEIRIN.