CERTAIN DEFINED TERMS
• Agreement: CMCL T&Cs, Licensed Works Agreement Details, and Registration Website terms and conditions.
• CMCL T&Cs: These Civility Matters™ Copyright License Terms and Conditions (OTT-0035).
• Licensed Works: Licensor has certain rights, title, and/or interests in the Civility Matters™ instruments, indices, and models (collectively, the “Licensed Works”) more fully described at the Civility Matters™ Licensed Works and Civility Matters™ Licensed Works Descriptions web pages (collectively, the “Licensed Works Agreement Details”).
• Licensee: That individual or entity licensing the Licensed Works from Licensor.
• Licensee’s Authorized Official: The official authorized by Licensee to enter into the Agreement with Licensee as identified on the Registration Website. Licensee’s Authorized Official may delegate the responsibility to complete the requested information on the Registration Website to another authorized individual who is also identified on the Registration Website.
• Licensee’s Documents: Any documents submitted to Licensor by Licensee that are related to the Licensed Works including, without limitation, the payment of the License Fee.
• Licensee Site(s). The location(s) where Licensee uses the Licensed Works during the Term.
• Licensor: Boise State University
• Party or Parties: Licensor and Licensee are defined individually as a “Party” and collectively as the “Parties.”
• Registration Website: The website hosted by Licensor where Licensee may license the Licensed Works, as supplemented by the Licensed Works Agreement Details.
GRANT OF LICENSE. Licensor hereby grants to Licensee, its employees, agents, and contractors, a limited, non-transferable, and non-exclusive license to use the Licensed Works to assess the level of incivility at the Licensee Site(s) identified by Licensee on the Registration Website (“License”). The License granted herein is for one-time implementation of the Licensed Works for non-commercial purposes only. The Licensed Works are more particularly described as quantitative and qualitative items and are used to gather perceptions of uncivil, disruptive, and threatening behaviors, the frequency of these perceived behaviors, and to elicit suggestions for prevention and intervention. Licensee shall not be authorized to create derivative works of the Licensed Works without the written approval of Licensor. Licensee acknowledges that Licensor requires high quality and accurate reproduction of the Licensed Works. Licensee agrees that it will not alter, modify, dilute, or otherwise misuse the Licensed Works or bring them into disrepute. Licensor reserves all other rights and interest in the Licensed Works, including copyright. Each copy of the Licensed Works and every written documentation, description, marketing piece, advertisement, or other representation of or concerning the Licensed Works shall conspicuously bear a notice of the Licensor’s copyright in the “Required Copyright Notice” form identified in the Licensed Works Agreement Details.
DISCLAIMERS; WAIVER OF CLAIMS. LICENSOR USES THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, STORAGE, AND RELATED TECHNOLOGY REQUIRED TO RUN AND MANAGE THE REGISTRATION WEBISTE, AND LICENSEE ACKNOWLEDGES THAT LICENSOR CANNOT AND DOES NOT GUARANTEE THE SECURITY OF LICENSEE’S DATA WHILE THEY ARE BEING TRANSMITTED OVER THE INTERNET OR WHEN THE DATA ARE BEING UTILIZED, STORED, HOSTED, OR ARE OTHERWISE IN THE CONTROL OF THIRD PARTIES, NOR SHALL LICENSOR BE LIABLE FOR ANY BREACH OF LICENSEE’S DATA. THE LICENSED WORKS AND REGISTRATION WEBSITE ARE ALL PROVIDED STRICTLY “AS IS, WHERE IS” WITHOUT ANY WARRANTY OR GUARANTY OF ANY KIND. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE HEREBY EXPRESSLY DISCLAIMED BY LICENSOR INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NOVELTY OF INTELLECTUAL PROPERTY, AND NON INFRINGEMENT. LICENSOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE USE OF LICENSED WORKS WILL NOT INFRINGE ANY PATENT, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND NOTHING CONTAINED IN THIS AGREEMENT IS TO BE CONSTRUED AS PERMISSION, A RECOMMENDATION, OR AN INDUCEMENT TO USE OR PRACTICE ANY PRODUCT, PROCESS, EQUIPMENT, OR FORMULATION THAT MAY INFRINGE UPON ANY OTHER INTELLECTUAL PROPERTY RIGHTS WITHOUT THE PRIOR WRITTEN PERMISSION OF THE INTELLECTUAL PROPERTY OWNER. LICENSEE HEREBY ACKNOWLEDGES THAT THE LICENSED WORKS MAY NOT SATISFY THE REQUIREMENTS OF: (I) NON-UNITED STATES LAWS, INCLUDING WITHOUT LIMITATION PRIVACY LAWS; AND/OR (II) LAWS REQUIRING ACCOMMODATIONS FOR INDIVIDUALS WITH DISABILITIES. LICENSEE HEREBY WAIVES ITS RIGHTS TO ANY AND ALL CLAIMS, SUITS, AND/OR ACTIONS AGAINST LICENSOR BASED ON, ARISING OUT OF, OR RELATING TO ANY OF THE MATTERS DESCRIBED IN THIS PARAGRAPH 3, AND IN NO EVENT, SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS (REGARDLESS OF WHETHER OR NOT LICENSOR KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES).
LICENSE FEE. In consideration for the granting of the License, the Licensee shall (i) immediately pay, by credit/debit card via the Registration Website, to Licensor the fees set forth on the Registration Website, and (ii) promptly at the end of the Term, provide an electronic file per Licensee Site with de-identified data describing the survey results related to Licensee’s use of the Licensed Works (all, collectively, the “License Fee”). No other fees, royalties, expenses, or amounts shall be incurred by Licensee in exchange for, or as a condition of receiving this License and the rights granted herein. The license rights set forth herein shall not become effective until payment of the monetary portion of the License Fee has been received and accepted by Licensor, after which Licensor will email the Licensed Works to Licensee. All amounts remitted hereunder shall be paid in U.S. dollars.
TERM. The term of this License shall commence on date Licensee pays the monetary portion of the License Fee on the Registration Website (“Effective Date”) and shall terminate eighteen (18) months after the Effective Date (the “Term”). If Licensee desires to use the Licensed Works after the end of the Term, Licensee shall pay for an additional license on the Registration Website.
LICENSE SERVICES. If Licensee chooses technical support, training, and/or implementation services related to the License, the Parties will contract for such work via a separate services agreement through Licensor’s Office of Sponsored Programs.
CONFIDENTIALITY/PUBLICATION. Information provided by Licensee in the course of using the Licensed Works (“Licensee’s Confidential Information”) shall remain confidential and proprietary to Licensee, and Licensor shall receive and use Licensee’s Confidential Information for the sole purpose of assisting Licensee in the implementation of the Licensed Works. Licensor agrees to protect the proprietary nature of Licensee’s Confidential Information, and to the extent allowed by applicable law, agrees not to disclose Licensee’s Confidential Information to any third party or parties without the prior written consent of the Licensee.
LIABILITY. To the extent allowed by applicable law, Licensee shall indemnify, defend, and hold harmless the Licensor, its officers, employees, and agents against any and all claims, damages, liability, and court awards, including costs, expenses, and attorney fees incurred as a result of any act or omission by Licensee, or its employees, agents, subcontractors, or assignees, arising from or related to Licensee’s use of the Licensed Works or any act or omission of Licensee under the terms of this Agreement. Licensee shall pay for all costs arising out of its activities under this Agreement, including but not limited to all costs of copying and distribution.
ASSIGNMENT. Licensee shall not assign to, and will not permit the use of said Licensed Works by, anyone, other than Licensee, its agents, employees, or contractors, without the prior written consent of Licensor, which consent will not be unreasonably withheld or delayed, but may require additional consideration to Licensor. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding on the successors, heirs, legal representatives, and permitted assigns of the Parties.
ABANDONMENT BY LICENSEE. In case of abandonment of this License by Licensee, Licensee shall give notice to Licensor of its intent to abandon, and the Licensed Works shall thereupon be free and clear of this License and of all rights and privileges attaching thereto.
CONSENT. Unless otherwise specifically provided, whenever consent or approval of the Licensor or Licensee is required under the terms of this License, such consent or approval shall not be unreasonably withheld or delayed, and shall be deemed to have been given if no response is received within thirty (30) days of the date the request was made. If either Party withholds any consent or approval, such Party on written request shall deliver to the other Party a written statement giving the reasons therefore.
NOTICE. All notices related to this Agreement shall be in writing, directed to the designated representatives of the Parties as indicated below, and delivered by (a) certified mail with return receipt requested, (b) hand delivery with signature or certification, or (c) email. For official email notice, the email subject line must include at least the following: “Official Agreement Notice – Agreement No. [Order Number Listed on the Registration Website and Email Confirmation].” Notice shall be deemed effective on the date received. The Parties agree to actively maintain their respective notice contact email addresses, but the Parties may change their notice contacts, including email addresses, at any time by written notice to all Parties.
Licensor Notice Contact
Office of Technology Transfer
Attn: Official Agreement Notice
1910 University Drive
Boise, ID 83725-2095 USA
Email: techtransfer@boisestate.edu with a cc to contracts@boisestate.edu
Licensee Notice Contact
Licensee’s Authorized Official via the contact information provided by Licensee on the Registration Website.
LEGAL AUTHORITY. Each Party to this Agreement warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, articles of incorporation/organization, bylaws and/or applicable law to exercise that authority. The person(s) executing this Agreement on behalf of a Party warrant(s) that such person(s) has/have full authorization to execute this Agreement.
GOVERNING LAW, JURISDICTION, AND VENUE. This Agreement shall be governed by and construed under the laws of the State of Idaho, United States of America, without regard to its principles or rules of conflicts of laws. Any claim arising under or related to this Agreement shall be filed and tried in the State District Court, Ada County, State of Idaho. Licensee hereby consents to personal jurisdiction in the State of Idaho.
WAIVER AND SEVERABILITY. No waiver of any breach of any provision of this Agreement shall operate as a waiver of any other or subsequent breach thereof or of the provision itself, or of any other provision. No provision of this Agreement shall be deemed to have been waived unless such waiver be in writing and signed by the Party waiving the same, with the signature on behalf of Licensor being that of the Vice President for Research and Economic Development. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
INDEPENDENT CONTRACTORS. It is understood and agreed by the Parties that Licensor is an independent contractor with respect to Licensee and that this Agreement is not intended and shall not be construed to create an employer/employee, partnership, or a joint venture relationship between Licensor and Licensee. Licensor shall be free from the direction and control of Licensee in the performance of Licensor’s obligations under this Agreement.
CONFLICT OF INTEREST. Except as set forth herein, Licensee certifies that no officer, employee, student, contractor, or agent of Licensor has been employed, retained, or paid a fee, or has otherwise received or will receive during or after the Term of this Agreement any personal compensation or consideration by or from Licensee or any of Licensee’s directors, officers, employees, contractors, or agents in connection with the obtaining, arranging, negotiating, or conducting of this Agreement without advance, written notification to Licensor.
DEFAULT. Any failure of either Party to perform in accordance with the terms of this Agreement shall constitute a breach of the Agreement. In the event of a material breach by Licensee, Licensor may, upon written notice to Licensee, declare the License terminated and may seek such other and further relief as may be provided by law, including, but not limited to, a temporary or permanent injunction against Licensee’s continued use of the Licensed Works, actual and/or statutory damages, costs of suit, and reasonable attorney fees incurred by Licensor as a result of the breach, plus interest on all amounts from the date of the breach until paid in full, at the highest rate permitted by law.
HEADINGS. Paragraph and subparagraph headings are for reference and convenience only and shall not be determinative of the meaning or the interpretation of the language of this Agreement.
TIME PERIODS. All time periods in this Agreement shall be deemed to refer to calendar days unless the time period specifically references business days; provided, if the last date on which to perform any act or give any notice under this Agreement shall fall on a Saturday, Sunday, or local, state, or national holiday, such act or notice shall be deemed timely if performed or given on the next succeeding business day.
ELECTRONIC SIGNATURE. Licensee consents and agrees that Licensee’s Authorized Official’s (or an individual authorized by Licensee’s Authorized Official) use of a key pad, mouse, or other device to type or select an item, button, icon, or similar act/action while using any electronic service Licensor offers including, without limitation, the Registration Website, or in accessing or making any transactions regarding any document, agreement, acknowledgement, consent, term, disclosure, or condition, constitutes signature, acceptance, and agreement by Licensee as if actually signed by Licensee’s Authorized Official in a physical writing. Further, Licensee and Licensee’s Authorized Official agree that no certification authority or other third-party verification is necessary to validate Licensee’s electronic signature, and that the lack of such certification or third party verification will not in any way affect the enforceability of Licensee’s signature or resulting Agreement between Licensee and Licensor. Consistent with Idaho Code § 28-50-107 as amended from time to time, Licensee hereby agrees that the electronic signature executed in conjunction with the electronic submission of its registration for the Licensed Works on the Registration Website is legally binding and such transaction shall be considered authorized by Licensee.
OFFICIAL, AGENT, AND EMPLOYEES OF LICENSOR NOT PERSONALLY LIABLE. In no event shall any official, officer, employee, or agent of Licensor be in any way personally liable or responsible for any covenant or agreement herein contained whether expressed or implied, nor for any statement, representation, or warranty made herein or in any connection with this Agreement.
FORCE MAJEURE. Neither Party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control including, without limitation, acts of God, war, strikes or labor disputes, embargoes, government orders, sickness, pandemics, appropriation acts, executive orders, or any other force majeure event.
ORDER OF PRECEDENCE. The Agreement consists of and precedence is established by the following order of documents, in descending order of importance: (1) these CMCL T&C, (2) Licensed Works Agreement Details, and (3) the Registration Website. In the case of any conflict or inconsistency arising under the above documents, a lower numbered document shall supersede a higher numbered document to the extent necessary to resolve such inconsistency (for example, the CMCL T&C shall supersede the Registration Website). In the event an issue is addressed in one of the above documents, but is not addressed in another, no conflict or inconsistency shall be deemed to occur; provided, however, where terms and conditions specified in any of Licensee’s Documents supplement the terms and conditions in the Agreement, the supplemental terms and conditions shall apply only if specifically accepted by Licensee in writing. This Order of Precedence shall survive the expiration or termination of this Agreement.
ENTIRE AGREEMENT; CHANGES AND AMENDMENT. This Agreement constitutes the entire agreement between the Parties and supersedes all previous contracts, understandings or agreements of the Parties, whether verbal or written, concerning the subject matter of this Agreement. No amendment to this Agreement shall be valid unless it is made in a writing signed by the authorized representatives of the Parties. Subject to Paragraph 24, where terms and conditions specified in Licensee’s Documents or other writings between the Parties differ from those specifically stated in the Agreement, the terms and conditions of the Agreement shall apply. Licensor hereby specifically objects to and rejects any terms and conditions that are in conflict with the Agreement. In the event Licensor honors one or more terms in Licensee’s Documents or other writings that conflict with the Agreement, such action does not constitute Licensor’s acceptance of any other terms in such writings or Licensee’s Documents. Any reference in Licensee’s Documents to terms and conditions other than those in the Agreement shall be void unless specifically accepted by Licensee in writing in accordance with Paragraph 24.
(OGC No. 21-7907) (2021)