General Access and Use Restrictions
Subject to these Terms, DFL grants you a limited, personal, non-exclusive, non-transferable and non-sublicenseable license to access and use the Site solely for your personal and informational purposes. If your school or school district/board of education (your "Subscriber") has entered into a User Agreement with DFL (a “User Agreement”), and you are a student or authorized employee of your Subscriber, you may have access to an account (each an “Account” and collectively, the "Accounts") assigned to you by such Subscriber. Prior to accessing and using an Account, you agree to confirm with your Subscriber that it has entered into a User Agreement with DFL and that the User Agreement remains in effect. You agree and acknowledge that DFL may make changes to the Site at any time without prior notice to you.
If you are assigned an Account by your Subscriber, the license above includes your right to access and use such Account and the Site functionality available through such Account (which may include, without limitation, the ability to access, edit, use and export information in your Account and other Accounts). You agree not to access or use, or attempt to access or use, any Accounts other than the Account(s) assigned to you by your Subscriber. All Accounts must be used solely in furtherance of your Subscriber’s access and use of the Site for the benefit of such Subscriber and its students.
If you do not have an Account but desire access and use of the areas of the Site accessible through Accounts, please contact your Subscriber.
DFL may terminate your access and use of the Site (including, without limitation, any Accounts associated with such access and use) at any time, for any reason or no reason, and in DFL’s sole and absolute discretion. The foregoing right includes, without limitation, DFL's right to terminate your access and use of the Site when it has reasonable cause to believe that you have breached any provision of these Terms. In addition, your right to access and use the Site will terminate automatically in the event of the termination of the User Agreement between DFL and your Subscriber (if applicable).
DFL may suspend your access and use of the Site (or any portions thereof including, without limitation, any Accounts associated with such access and use) at any time, for any reason or no reason, and in DFL's sole and absolute discretion. The foregoing right includes, without limitation, DFL’s right to suspend your access and use when it has reasonable cause to believe that you have breached any provision of these Terms.
If you wish to terminate your access and use of the Site, please contact your Subscriber.
In the event of any termination of your access and use of the Site, (a) the license granted to you shall immediately terminate and you agree not to access and use, or attempt to access and use, the Site, and (b) you agree to immediately destroy all information, documents or materials (tangible or intangible) that you have in your possession or control that you received from DFL or otherwise obtained or accessed through your access and use of the Site.
DFL is not required to provide you with notice of the termination or suspension of your rights to access and use the Site. All rights not granted to you herein are expressly reserved.
When a Subscriber provides DFL with information about Users by uploading it to the Site or creating an Account, DFL presumes that the Subscriber has obtained all authorizations, approvals and consents required by Law (as defined below).
As part of the Site’s functionality, you may have the ability to submit certain materials to the Site (such materials, collectively, the “Submissions”). For example, Users with certain administrative Accounts may have the ability to post certain materials on the Site’s bulletin boards so that they can be seen by other Users of that Subscriber.
You grant to DFL a non-exclusive, fully-paid, world-wide, royalty-free, sub-licenseable license and right (without any accounting or any other obligation or compensation owed to you), in connection with DFL’s provision of access and use of the Site to your Subscriber and the other Users of such Subscriber to (in any medium now known or hereafter devised): (a) reproduce, make, have made, copy, reproduce, modify, adapt, translate into any language, prepare derivative works of, use and import the Submissions, and (b) distribute, perform and display, and license the Submissions through the Site to Subscriber and the other Users associated with such Subscriber, including, without limitation, on pages containing third party advertisements, sponsorships or promotion. The foregoing license will terminate upon the termination of your Subscriber’s User Agreement with DFL.
You waive all applicable moral rights, rights of publicity and rights of privacy associated with your Submissions and grant to DFL the right, at its sole discretion, to use your name in connection with your Submissions.
DFL may, at any time and in its sole discretion, refuse any Submissions and remove Submissions from the Site.
Your Representations and Warranties; Certain Obligations
(a) You represent, warrant and covenant that:
- (i) you have the power, authority and capacity to enter into these Terms and to satisfy your obligations under these Terms;
- (ii) these Terms are binding on and enforceable against you;
- (iii) you will access and use the Site solely as permitted under these Terms;
- (iv) you will comply with all applicable laws, rules, regulations and ordinances including, without limitation, laws and regulations relating to export controls (collectively, “Laws”) in connection with your access and use of the Site;
- (v) you have obtained all necessary consents, approvals, authorizations, licenses, clearances and permissions necessary for your access and use of the Site (including, without limitation, all of the foregoing as are necessary for DFL to make Submissions available through the Site free and clear of any claims of third parties); and
- (vi) your access and use of the Site will not breach or violate any contract, agreement or Law to which you are a party or by which you may be bound or subject (as applicable).
(b) You further represent, warrant and covenant that you will not, in connection with your access or use the
Site (including, without limitation, with respect to any Submissions or information you provide to the Site):
- (i) violate, misappropriate or infringe in any way on the rights or property of DFL or others (including, without limitation, with respect to privacy, publicity, moral, performance, copyright, trademark, trade secret or other intellectual property or proprietary rights);
- (ii) engage in any activity or conduct that is or could be libelous, slanderous, defamatory, obscene, pornographic, threatening, abusive or embarrassing (whether applicable to you, any of the other users of the Site or any third party);
- (iii) engage in any activity or conduct that is or could be harmful to the Site, any other users of the Site or any third party (including, without limitation, uploading materials containing a virus or other harmful component);
- (iv) engage in any activity with a commercial purpose (including, without limitation, uploading any advertisements or commercial materials to the Site);
- (v) attempt to do any of the foregoing or encourage or assist a third party in doing any of the foregoing.
- (c) You agree to keep records evidencing your compliance with these Terms (including, without limitation, with respect to your Submissions) and to provide copies of these records to DFL at its request from time to time.
Intellectual Property Ownership
You acknowledge that DFL owns and shall retain all right, title and interest in and to the Site and all improvements, enhancements, and modifications thereto, and all copyrights, patents, trade secrets, trademarks and other intellectual property and proprietary rights therein.
You shall not:
- (a) provide access or use of the Site or your Accounts (or any passwords or materials relating thereto) to any third party;
- (b) modify, publish, post, upload, distribute, create derivative works from, copy, reproduce, adapt, rent, sublicense, lease, loan, reverse engineer, disassemble, decompile or attempt to obtain the source code of all or any portion of the Site; or
- (c) obscure or modify any of the copyright or other proprietary notices of DFL contained therein.
Use Site Only in Conjunction with Guidance of Trained Professionals
If you are a student, you agree to use the Site solely in conjunction with the guidance and supervision of trained and qualified medical, health and fitness professionals including, without limitation, those associated with your Subscriber. You agree to consult with such professionals prior to using the Site including, without limitation, with respect to any questions you may have regarding a medical condition, your exercise program, goals, diet, nutritional needs, or anything else related to your health and fitness.
Nothing in the Site constitutes medical or health advice, diagnosis or treatment, nor does the use of the Site create any health or medical relationship between you and DFL. If you are a student, you should use the Site only with the participation, guidance and supervision of the authorized employees of your applicable Subscriber, your parent or legal guardian and your health and medical providers. If you are an authorized employee of Subscriber, you agree that you are responsible for participating in and providing guidance and supervision over the use of Site by your students.
Please note that DFL has no obligation to review, monitor or track any information or materials uploaded to the Site, and has no obligation to report or respond to any information or materials uploaded to the Site.
Access and Use the Site at Your Sole Risk; DFL Is Not Liable To You For Any Damages or Losses;
YOU AGREE AND ACKNOWLEDGE THAT YOUR ACCESS AND USE OF THE SITE IS AT YOUR SOLE RISK. IN NO EVENT SHALL DFL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, EXTRAORDINARY OR OTHER DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR ACCESS AND USE OF THE SITE, EVEN IF DFL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, OR IF SUCH DAMAGES OR LOSSES ARE OTHERWISE FORESEEABLE, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED (E.G., WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE).
NOTHING IN THESE TERMS (INCLUDING, WITHOUT LIMITATION, THE SECTION BELOW TITLED "Site Provided "AS IS"; Disclaimer of Warranties") SHALL EXCLUDE OR LIMIT WARRANTIES OR LIABILITY FOR DAMAGES OR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR DAMAGE OR LOSS CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You acknowledge and agree that DFL has relied on the enforceability of the disclaimers and limitations contained in these Terms in agreeing to enter into these Terms with you and to provide you with access and use of the Site.
Site Provided "AS IS"; Disclaimer of Warranties
THE SITE IS PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED. DFL HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES AND REPRESENTATIONS OF NON-INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE TIMELINESS, ACCURACY AND COMPLETENESS OF ANY INFORMATION OR MATERIALS YOU ACCESS OR RECEIVE THROUGH YOUR USE OF THE SITE.
In addition to the foregoing, you specifically acknowledge and agree that DFL:
- (a) has no liability relating to any submission of information or materials made by you, on your behalf or by any other users of the Site, nor will DFL have any liability for any access or use of any such information or materials (whether authorized, unauthorized, through the use of an Account or otherwise);
- (b) does not warrant or represent that the Site (i) has been verified or authenticated in whole or in part by DFL or any third party, or (ii) is free from inaccuracies, errors or omissions (whether caused in whole or in part by DFL, its licensors or contractors, or other users of the Site); and
- (c) does not make any representation or warranty (i) that access and use of the Site will be uninterrupted, virus-free, error-free or that your information and materials will be completely secure, or (ii) with respect to any third party products, services, websites or online resources (collectively, “Third Party Services”) including, without limitation, any Third Party Services available through any advertisements, sponsorships or promotions on the Site or available in connection with your use of the Site. You agree and acknowledge that you will use any Third Party Services solely in accordance with the terms and conditions associated with such Third Party Services. Prior to using any Third Party Services, you agree to review, accept and consent to any terms and conditions and privacy policies associated with such Third Party Services.
You agree to indemnify and hold DFL, its subcontractors, licensors and vendors, and all of DFL’s and their respective officers, directors, members, managers, employees, agents and representatives (collectively, the "Indemnitees") harmless from, and pay or reimburse the Indemnitees for, any and all losses, liabilities, claims, damages, judgments, settlements, costs and expenses (whether or not resulting from third party claims and including, without limitation, reasonable attorneys' fees and expenses incurred in the investigation or defense of any claim) arising out of or relating to:
- (a) your breach or alleged breach of these Terms or any term, condition, representation, warranty or covenant herein; and/or
- (b) any information or materials (including, without limitation, any Submissions) provided by you or on your behalf, or the subsequent access, use and distribution thereof in connection with the Site.
Notice of Violations
DFL respects the intellectual property rights of others. If you believe that your work has been copied and has been posted, stored or transmitted to the Site in a way that constitutes copyright infringement, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing DFL’s copyright agent the following written information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed upon;
- A specific description of where the material that you claim is infringing is located on the Site;
- Your address, telephone number, and email address;
- 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; and
- 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.
DFL copyright agent for notice of claims of copyright infringement on the Site can be reached as follows:
DFL Copyright Agent, 57 Armstrong Drive, Clark, NJ 07066, Phone: (201) 247-6506; E-mail: [email protected]
Changes to Terms
DFL may make changes to these Terms at any time. If DFL decides to make changes to these Terms, we will incorporate such changes into these Terms and add a notice on the home page of the Site and other places we deem appropriate that these Terms have changed. Your continued access and use of the Site after such changes have been made will constitute your agreement to such changes. Therefore, you should review these Terms periodically for changes. You may not change these Terms.
These Terms shall be governed by and construed in accordance with the laws of the State of New Jersey, without reference to its principles of conflicts of law.
You consent to the jurisdiction of and venue in the United States Federal District Court for the District of New Jersey sitting in Newark, New Jersey and the Superior Court of the State of New Jersey sitting in Essex County, New Jersey, for the resolution of all disputes, claims, actions or proceedings arising out of or in connection with the Terms or your access and use of the Site. You agree that you will not initiate any such claim, action or proceeding in any court other than such courts or take any action to have any such claim, action or proceeding heard or adjudicated in any other courts other than such courts. You waive any objections or defenses to the jurisdiction of and venue in such courts including, without limitation, any defenses relating to such courts being an inconvenient forum.
TO THE EXTENT PERMITTED BY LAW, IF ANY DISPUTE OR CLAIM RESULTS IN AN ACTION OR PROCEEDING, YOU KNOWINGLY AND VOLUNTARILY AGREE THAT A JUDGE, WITHOUT A JURY, WILL DECIDE SUCH MATTERS. YOU KNOWINGLY AND VOLUNTARILY AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY.
If any provision of these Terms is held to be invalid or unenforceable in part, that provision shall be enforced to the maximum extent permitted by Law. If any provision of these Terms is held to be wholly invalid or unenforceable, that provision shall be deemed severed from these Terms and the remainder of these Terms shall remain in full force and effect. To the fullest extent, however, that any Law limiting the enforceability of provision hereof may be waived, you hereby waive such Law.
Performance by DFL is excused so long as, and to the extent that, such performance is prevented by events outside of DFL’s reasonable control including (without limitation) any act of God, act of public enemy or terrorist, fire, explosion, electrical power outage, failure or malfunction of computer equipment or software, lack of or disruption to Internet or other network access, strike, lockout or other labor disturbance, epidemic, quarantine, embargo, war (whether declared or undeclared), civil disturbances, sabotage, restraint of any governments, or any other event outside of DFL’s reasonable control, whether similar or dissimilar to any of the foregoing, whether affecting DFL directly or any of its licensors, vendors or contractors.
DFL may, from time to time, provide notices to you on or through the Site, directly to your Subscriber or through other reasonable means of notice that DFL may utilize from time to time.
Any waiver by DFL must be in writing and signed by a duly authorized representative of DFL. Any waiver by DFL in one instance shall not constitute a waiver in future instances.
Termination of your access and use of the Site shall be without prejudice to DFL's rights and remedies at law, in equity and pursuant to these Terms and the User Agreement with your Subscriber, all of which shall be cumulative.
You may not assign or delegate your rights or obligations under these Terms without DFL's prior written consent, and any purported assignment or delegation without such consent shall be void and of no force and effect.