FOR THE COMMONS
2. Acceptance of Terms
Unless otherwise agreed to in a separate signed writing, Your access and use of the Commons, Content (defined in Section 7), or any forums, wikis, blogs, or services provided on the Commons (any Services), are subject to this TOU. Additionally, Your use of the Commons, Content, and the Services may be subject to additional disclaimers, legal notices, “click-thru” agreements, or other legal agreements (collectively, Additional Legal Terms), which may be posted on the Commons or otherwise agreed by You and Ellucian where applicable. Your access and use of any Ellucian-provided software (which may include software owned by third parties) and related documentation, modifications and Intellectual Property Rights (together Ellucian Software) and all other Ellucian Confidential Information that may be provided on the Commons is also subject to the software license, services and/or maintenance agreement (as applicable) separately entered into between Your Institution and the Ellucian company with which Your Institution has its latest agreement for such software, services and/or maintenance. This TOU and the applicable Additional Legal Terms (together Controlling Terms) form a legally binding agreement between You and Ellucian regarding Your access and use of the Commons, Content, and the Services. Whenever there is a conflict between the terms in this TOU and the Additional Legal Terms, the terms in the Additional Legal Terms shall control. In addition, because the Commons may be hosted or otherwise made available to You by third party vendors to Ellucian, Your access and use of the Commons is subject to the terms and conditions of each third party vendor (Third Party Terms). Third Party Terms are included in this TOU but separately identified to each third party vendor. The Third Party Terms govern the rights and obligations between each third party vendor and You and form a legally binding agreement between You and the third party vendor. By accessing or using the Commons, You accept and agree to abide by the terms of this TOU. If You do not agree to the terms of this TOU, You must not attempt to access or use the Commons.
3. Changes and Notices
Ellucian reserves the right to make changes to this TOU and to modify, change or discontinue any part or all of the Commons and/or the Services, at any time. Ellucian may notify You of any changes to this TOU, the Commons, and/or the Services when You visit the Commons, via email, or by updating the TOU which can be viewed via the Legal Terms link. Changes to the TOU will be effective when posted. Ellucian may make changes to its products, service offerings and Ellucian Software at any time without notice.
Periodically, You may be required to specifically acknowledge Your review of and agreement to the Controlling Terms via a “click-thru” agreement on the Commons, where applicable. However, regardless of whether You are required to specifically agree to any Controlling Terms on the Commons, Your access and use of the Commons means that You agree to the Controlling Terms then in effect.
THE MOST CURRENT VERSION OF THIS TOU CAN BE ACCESSED BY CLICKING LEGAL TERMS WHICH IS INCLUDED ON THE BOTTOM OF EACH WEB PAGE COMPRISING THE COMMONS.
4. Confidential Information
A. Except for Web sites within the Commons which are clearly identified as non-public forums (each a Private Forum), the Commons is intended to be a public forum with respect to authorized Users and You agree not to provide Ellucian or other Users with any confidential or proprietary information that You or the owner of the information do not intend to become public information. Any Content that You send or upload to the Commons will be deemed NOT confidential or proprietary, and You expressly agree that You waive any trade secret or other confidentiality rights with respect to such uploaded Content. Ellucian shall not be liable for the disclosure of any confidential information that is shared on the Commons.
B. You agree not to reproduce any Confidential Information to which You are provided access through the Commons in any form except as authorized at the time of disclosure. Any reproduction of Ellucian Confidential Information shall remain the property of Ellucian and shall contain any and all confidential or proprietary notices or legends which appear on the original. You agree to (a) take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) to use Confidential Information solely as authorized at the time of disclosure; and (c) not to disclose any Confidential Information to any party without the prior written consent of Ellucian. You do not acquire any rights in Confidential Information except the limited rights as described above. In no event shall You use Confidential Information to create, enhance, modify, rent, lease, loan, sell, distribute or create derivative works based on the Software or Services, or compete with Ellucian Software or Services in whole or in part. As used herein, Confidential Information shall mean all trade secrets and other information or Services which Ellucian or third parties protect against unrestricted disclosure to others which is either labeled Confidential, accessed through a restricted area of the Commons, pursuant to software downloads, or reasonably identifiable as confidential based on the type of information and the manner of its disclosure, and reasonable steps means those steps You and/or Your Institution take to protect Your own similar Confidential Information, which shall not be less than a reasonable standard of care.
ALL UPLOADS AND POSTINGS BY YOU INTO THE COMMONS, WHETHER INTO A PUBLIC FORUM OR PRIVATE FORUM, SHALL BE AT YOUR OWN RISK AND ELLUCIAN TAKES NO RESPONSIBILITY FOR THE USE OR MISUSE OF ANY SUCH UPLOADED AND POSTED INFORMATION BY ANY OTHER USER OF THE COMMONS.
5. Your Information, Privacy, and Data Protection
6. Copyright Policy
Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holder’s rights. You agree that You will not use the Commons to infringe the Intellectual Property Rights of Ellucian or others in any way. You will not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notice of ownership from any originals or copies of Ellucian Software, third party software, or any Content accessed on the Commons. As used herein, Intellectual Property Rights means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secret or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
Ellucian respects the intellectual property of others, and we ask our users to do the same. Ellucian may, in appropriate circumstances and at its discretion, terminate the access/accounts of users who infringe the intellectual property rights of others. If You believe that Your work has been copied in a way that constitutes copyright infringement or any other violation of Your rights, please provide Ellucian's Copyright Agent the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2. a description of the copyrighted work that You claim has been infringed or material which otherwise violates Your rights;
3. a description of where the material that You claim is infringing/violating is located on the site;
4. Your address, telephone number, and e-mail address;
5. a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.
For notice of claims of copyright infringement on the Commons, You can reach Ellucian's Copyright Agent as follows:
Assistant General Counsel
Ellucian Company L.P.
4 Country View Road
Malvern, PA 19355
7. Responsibility for Links and Content
The Commons may contain links to external Web sites and information provided on such external websites by Ellucian partners and third-party service providers. Ellucian shall not be responsible for the content of any linked Web site, or any changes or updates to such sites, nor shall Ellucian be responsible for the privacy practices or Third Party Terms of any third party vendors. You further agree that Ellucian shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on any content, goods or services available on or through any such linked Web site or the Commons. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog on the Commons (any Content), whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the Content. Ellucian is not responsible for the privacy practices, content or Third Party Terms of other third party vendors.
8. Intellectual Property Rights; License Grant
Ellucian grants You a limited, non-exclusive, non-transferable, freely revocable license to use the Commons and the Services for Your own non-commercial use. Subject to any licenses You grant to Ellucian pursuant to this TOU, and except as otherwise agreed between You and Ellucian, You shall retain ownership of all Intellectual Property Rights in and to the Content provided by You on the Commons to the extent You are the owner or holder of the Intellectual Property Rights. All Intellectual Proprietary Rights to any Ellucian Software and the Services shall remain with Ellucian.
The Commons is intended to benefit the Commons users, and to facilitate Ellucian’s ability to improve Ellucian’s products and services for the Ellucian user community generally, and the Commons community in particular. To help facilitate this intention, You agree that, by transmitting or uploading Content to the Commons, You grant Ellucian a perpetual, unlimited, irrevocable, royalty-free, worldwide license to use, reproduce, adapt, modify, distribute, license, and create derivative works of the Content.
You further represent and warrant to Ellucian that You have the right, title, and/or authority to grant such license to Ellucian. Ellucian may elect not to post or publish the Content that You send or upload. You acknowledge that the license rights You grant to Ellucian survive termination of this TOU and Your account.
If Ellucian elects to post or publish the Content, Ellucian may in its sole discretion elect to withdraw the posted or published information for any reason and without notice. Similarly, You are under no obligation to post any Content on the Commons. You and Ellucian agree that comments or information posted in the Commons (Postings, and the person or entity making such Posting being the Posting Person) will not be used for marketing or advertising purposes without explicit written permission from the Posting Person. Ellucian will not use any Postings as endorsements of Ellucian’s products or services without the prior and express written consent of the Posting Person.
If you wish to share any Content that comprises Your tangible work product, You may wish to do so through the Commons Community Source. Material that is submitted to the Commons Community Source (“CCS Material”) is subject to the terms of the Community Source Contributor Agreement, and in the event of any conflict between this TOU and the terms of the Community Source Contributor Agreement regarding the CCS Material, the terms of the Community Source Contributor Agreement will govern.
9. Permissible Use of the Commons
You agree not to access or utilize the Services for purposes that are inconsistent with Ellucian's legitimate business interests.
- You are permitted to Use the Services only in strict compliance with the terms of this TOU to obtain information, so long as that information is not being gathered for a use in any manner which is or could be detrimental to Ellucian (unless such use is otherwise protected by law), and/or to provide feedback or other constructive comments to Ellucian (both positive and negative) and the Commons community.
- Use of the Services for any other purpose is prohibited without the express permission of Ellucian.
10. International Use and Export Compliance Prohibited Content related to Encryption
Access and use of the Commons is subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations in connection with any access and use of the Commons. You may not access, post, download, use or export the Content or the Services or any other part of the Commons in violation of U.S. export laws or regulations (including without limitation the Export Administration Regulations (“EAR”) of the U.S. Commerce Department’s Bureau of Industry and Security; the International Traffic in Arms Regulations (“ITAR”) of the U.S. State Department’s Directorate of Defense Trade Controls, and the economic sanctions regulations of the U.S. Treasury Department’s Office of Foreign Assets Control “OFAC”), or in violation of any other applicable laws or regulations. In this regard, You understand and agree that the posting of any Content to or transmitting Content from the Commons may constitute, without limitation, an export of such Content outside the United States, and an import of the Content into another jurisdiction. As such, You represent and agree that all of Your Content, in its then-current form when posted or otherwise contributed to the Commons, is (1) lawfully exportable outside the United States (and every other applicable jurisdiction, as applicable) to every location other than, where applicable limitations apply, countries listed in Country Group E:1 as identified in the EAR (including without limitation Cuba, Iran, North Korea, Sudan and Syria), and (2) lawfully importable into every other applicable jurisdiction, without any further action by anyone. Without limitation, this means that prior to posting Your Content on the Commons, You have obtained all necessary consents and approvals including, if necessary, a validated export license from the Office of Export Administration within the U.S. Department of Commerce and such other appropriate United States governmental authorities and any other applicable jurisdiction. As applicable, You shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to Your sharing of Content and/or use of the Commons and/or its Content outside the United States. In particular, You represent that You: (1) are not a party identified on any government export exclusion list, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals, Specially Designated Terrorists, Specially Designated Narcotics Traffickers Lists, or the Table of Denial Orders and any similar list, and You are not located in, a resident of, or acting on behalf of the government of any country or territory subject to an embargo authorized or enforced under any U.S. export regulations, trade sanctions or other laws (including countries listed in Country Group E:1 as identified in the EAR , and that you are also not a national of such a country unless you also are authorized to permanently reside in a country other than those countries; and (2) will not transfer any software, technology, or other technical data through the Commons, directly or indirectly, to any person identified on these lists or to any person, country or destination for which the United States government or governmental agency requires an export license or other authorization for export, without first having obtained such license or other required authorization. Finally, You represent and agree that You and Your Institution maintain adequate policies and procedures to comply with the foregoing provisions.
PROHIBITED CONTENT RELATING TO ENCRYPTION. In addition to Your obligations stated above, in furtherance of Ellucian’s and Your compliance with United States export laws, You agree that Content relating to encryption will not be shared by You on the Commons. In this context, “Content relating to encryption” means any information or software in any form that involves encryption, encryption functionality, or information security that is subject to the EAR or the ITAR. Without limiting the foregoing, Content related to encryption includes software (and related information) that implements encryption algorithms, encryption functions, or information security functions, and also software (and information related to such software) that does not itself implement such function but can activate or enable the encryption or information security functions of other software, products or items, as well as any other items identified in Category 5 (Part 2) of the Commerce Control List of the EAR. If You wish to share Content relating to encryption with Ellucian, You may do so only through the private link described below You agree not to post, upload, transfer, contribute, transmit or otherwise share any such Content relating to encryption on the Commons (including without limitation software, technology or other technical data), including any Ellucian Software, without the prior written consent of Ellucian. In the event You wish to submit Content relating to encryption, please submit Your request via email to email@example.com.
11. Termination and Accountability
In the event You are in material breach of the Controlling Terms, Ellucian may, at its sole discretion, suspend or terminate Your account and refuse You any current or future use of the Commons. Ellucian may remove any Content posted on the Commons at Ellucian’s sole discretion. Ellucian shall not be liable to You or any third party for any termination or change to the Commons and/or the Services. If You send or upload Content that is confidential or proprietary of a third party without that third party's permission, or, if You transmit or upload Content that is intended to infect, corrupt or otherwise disrupt the operation of the Commons or any other Users computer system, or if You transmit or upload Content in violation of applicable export and import laws, Ellucian may report You to the relevant authorities to ensure You are held accountable to the fullest extent of applicable laws.
You agree not to use the Commons to:
- publish, upload, post, email, transmit or otherwise make available any Content that (a) You do not have the right to make available (b) is unlawful, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable; (c) infringes any Intellectual Property Rights of any party, (d) includes any unsolicited or unauthorized advertising, promotional materials, surveys, junk mail, spamming, chain letters, or any other form of solicitation, commercial or otherwise, or (e) contains a software virus, Trojan horse, worm, time bomb, corrupted file, or any other computer file or software designed to interrupt, destroy, damage or limit the functionality of any computer hardware, software or other property;
- defame, harass, abuse, stalk, threaten or violate the legal rights of others such as rights of privacy and publicity;
- impersonate any person or entity, including, but not limited to, an Ellucian official, Ellucian employee, or any other third party, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
- forge email headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
- download any file or Content posted by another user that You know, or reasonably should know, should not be legally reproduced, displayed, performed and/or distributed in such manner;
- interfere with or disrupt the Services, servers, or networks which support the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- violate any applicable local, state, national or international law and any regulations;
- harvest, collect, or store personal information or data of other Users.
You may not use the Commons if you are under eighteen (18) years of age.
12. Specific Terms to Ellucian Software available on the Commons
Ellucian Software that may be made available to download from the Commons is the copyrighted work of Ellucian. Use of the Ellucian Software is governed by a software license, services and/or maintenance agreement, as applicable (License Agreement) which accompanies such Ellucian Software. You may not use or install any Ellucian Software which is accompanied by a License Agreement until You and Your Institution first agree to the terms of the License Agreement. You must not modify, decompile, or reverse engineer any Ellucian Software, except to the extent expressly permitted by applicable law. To the extent You access or use any aspect of Confidential Information (including without limitation the Ellucian Software) to which You do not have license rights pursuant to a License Agreement, You agree to treat such Content as Confidential Information consistent with this TOU and as though such Content were expressly subject to the confidentiality obligations in Your License Agreement.
Except to the extent that You are expressly prohibited from assuming an indemnity obligation under applicable law, You agree to indemnify and hold Ellucian, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of Your Content or Your usage of the Commons or Services, Your breach of this TOU or Ellucian’s Privacy Statements, or Your alleged violation of any other rights of a third party.
14. Exclusion of Warranties
The Commons, Content, and Services are being provided to You AS IS. To the fullest extent allowable by law, Ellucian does not guarantee or warrant any features or qualities of the Commons, Content, or Services or give any undertaking with regard to any other quality. Statements and explanations to the Commons, Content or Services in promotional material or on the Commons and in the documentation are made for explanatory purposes only; they are not meant to constitute any guarantee or warranty of certain features. No warranty or undertaking shall be implied by a User from any published Ellucian description of or advertisement except to the extent Ellucian has expressly confirmed such warranty or undertaking by a separate written agreement.
Ellucian does not represent or endorse the accuracy or reliability of any (i) links to web-pages of third parties contained on the Commons, or the content obtainable on such web-pages or (ii) information provided by third parties on the Commons. Ellucian will not permanently control and/or review the linked web-pages and the information provided by third parties but upon sufficiently proven indication will remove the respective link and/or information. Ellucian shall not be liable for damages caused by the use of the Content and/or information.
15. Limitation of Liability; EXCLUSIVE REMEDIES
TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, ELLUCIAN AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS ARE NOT LIABLE TO ANY USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ELLUCIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE COMMONS, ELLUCIAN SOFTWARE, OR SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES ARISING OUT OF YOUR USE OR INABILITY TO USE ANY ELLUCIAN SOFTWARE, CONTENT, OR SERVICES PURCHASED OR OBTAINED DURING TRANSACTIONS CONDUCTED ON THE COMMONS; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS, MESSAGES, OR CONDUCT OF ANY THIRD PARTY ON THE COMMONS; OR (V) ANY OTHER MATTER RELATING TO THE COMMONS OR SERVICES.
YOUR ONLY REMEDY WITH RESPECT TO DISSATISFACTION WITH (1) THE COMMONS OR SERVICES; (2) ANY PROVISION IN THIS TOU; (3) ANY POLICY OR PRACTICE OF ELLUCIAN; OR (4) ANY CONTENT ON THE COMMONS, IS TO TERMINATE THIS TOU AND YOUR ACCOUNT. YOU MAY TERMINATE THIS TOU AS IT APPLIES TO YOU AT ANY TIME BY NOTIFYING ELLUCIAN VIA EMAIL TO ACCOUNT.COMMONS@ELLUCIAN.COM AND DISCONTINUING ALL USE OF THE COMMONS.
16. Applicable Law
The laws of the Commonwealth of Pennsylvania, USA, will govern this TOU without giving effect to any principles of conflicts of laws. You also agree to comply with all laws from the country in which You reside that are applicable to the transmission of data on the Internet, including, but, not limited to laws governing the use of encryption and laws governing the transmission of data across international boundaries, into prohibited countries, and containing personally identifiable information.
Upon termination of this TOU or Your account, any provision which, by its nature or express terms should survive, will survive termination. Without limitation, Your confidentiality obligations hereunder shall survive termination of Your account. Upon any termination of Your account, or Ellucian’s written request, You must cease use of Confidential Information, Content and/or Services and return or destroy all Confidential Information in Your possession or control.
18. Waiver and Severability
The failure of Ellucian to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. To the extent that any provision in this TOU shall be found to be unenforceable, such provision shall be modified in such a manner so as to make this TOU as modified, legal and enforceable under applicable laws and the balance of the provisions of this TOU shall not be affected thereby.
LAST REVISED: April 2012