LEXERCISE® FOR SCHOOLS TERMS OF SERVICE
Last Modified: August 28, 2020
Mind InFormation®, Inc. (“we”) provides subscriptions to our online integrated instructional platform for the identification and treatment of dyslexia and other similar learning difficulties, known in the marketplace as LEXERCISE® (including all functionality, software, content, educational materials and services made available thereon by us, the “Platform”), to schools, school districts, tutoring centers and other organizations and commercial entities subject to the terms and conditions of this agreement (this “Agreement”).
- Acceptance. By executing a Subscription Agreement with us, you also accept the terms of this Agreement. You should read this Agreement carefully for the terms and conditions that govern your use of the Platform. The individual executing the Subscription Agreement on your behalf represents and warrants to us that he or she is fully and duly authorized to agree to be bound by this Agreement on your behalf.
- Our Services.
- Services. During the Term, we will use commercially reasonable efforts to host, manage and operate the Platform for remote electronic access and use by you, your Organization User, your Teachers, your Students and their Guardians in accordance with the authorizations granted below.
- Changes. We may make any changes to the Platform (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Platform) that we deem necessary or useful to improve the Platform or for any other reason, at any time and without notice to you, but we will not make any changes to the Platform that would materially adversely affect the features and functionality available to you.
- Subcontractors. We may, in our discretion, engage subcontractors to aid us in performing our services under this Agreement, but such subcontractors will be bound by confidentiality terms, duties or obligations that are substantially equivalent to Section 7 below, and we will remain liable for any act or omission by them that would be a breach or violation of this Agreement. We use DigitalOcean (the “Hosting Services Provider”) for cloud infrastructure and hosting services related to the Platform, as described in further detail in Section f below. We will share the names of additional subcontractors we use (if any) with you upon request.
- Suspension of Services. We may suspend or deny your, any Organization User’s, any Teacher’s, any Guardian’s or any Student’s access to or use of all or any part of the Platform without any liability to you or others, if (i) we are required to do so by law or court order, (ii) you have, or if any Organization User, Teacher, Guardian or Student has: (A) accessed or used the Platform beyond the scope of the rights granted under this Agreement, (B) been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Platform, (C) violated the limitations and restrictions described in Section b, or (D) otherwise violated this Agreement and failed to cure such breach within ten days after we provide written notice to you. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 12 and any of our other rights or remedies under this Agreement or otherwise.
- Right to Access the Platform and Restrictions.
- Authorization. Subject to your payment of the applicable fees listed on your Subscription Agreement and Service Orders, and so long as you, your Organization User, your Teachers and your Students and their Guardians otherwise comply with this Agreement, we authorize you, during the Term, and on a non-exclusive and non-transferable basis, to access and use the Platform by and through your Organization User, your Teachers, your Students and their Guardians, solely for the Permitted Use, solely as (and in the form) in which we have provided the Platform to you, and solely in accordance with this Agreement and the Documentation. This authorization includes the right to print and make a reasonable number of copies of the materials we make available on the Platform that are specifically designed for such purposes (such as flash cards, error word cards and lesson note taking templates), as indicated on the Platform, to the extent necessary to support the Permitted Use of the Platform. You are responsible for your Students’ and their Guardians’ access to and use of the Platform and for compliance with this Agreement by such persons, and a breach of this Agreement by your Student or their Guardian will be deemed to be a breach of this Agreement by you (and you will be responsible for and liable for such breach).
- Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Platform. You must not, and you must not permit any other person or entity to, access or use the Platform except as we’ve specifically allowed in this Agreement and, in the case of any third-party content or materials (including open source components) (“Third-Party Materials”) we provide to you, as allowed in the applicable third-party license agreement. Except as expressly provided in this Agreement, you, your Organization User, your Teachers, your Students and their Guardians must not do any of the following:
- copy the Platform or any portion thereof;
- modify, adapt, translate or otherwise create derivative works or improvements of the Platform or any portion thereof;
- make the Platform available (e.g., rent, sell, sublicense, distribute or transfer) to any other person or entity, including through any time-sharing, service bureau or software as a service arrangement;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Platform or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Platform;
- input, upload, transmit or otherwise provide to or through the Platform any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the Platform;
- attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Platform, (B) the server on which the Platform is stored, (C) any server, computer or database connected to the Platform, or (D) our ability to provide services to any third party;
- cause the Platform or portions of it to be displayed, embedded or appear to be displayed by framing, deep linking, in-line linking or similar method on any other site;
- use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
- access or use the Platform in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
- access or use the Platform for purposes of (A) benchmarking or competitive analysis, (B) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Platform, or (C) disclosing to our competitors, for any purpose, otherwise non-public information about the Platform; or
- knowingly aid or assist any Organization User, Teacher, Guardian, Student or other person or entity in taking any of the actions prohibited by this Section 4.b.
You must immediately notify us should you learn that you, your Organization User, any Teacher, any Guardian, any Student or any other person or entity has taken any action prohibited by this Section 4.b.
- Support Services and Engagement of Therapists.
- Limited Support Provided By Us. Your subscription comes with access to user frequently asked question pages (FAQs), community support forums and other support and informational materials that are made available to Platform users via the Documentation and our website. We do not otherwise provide any support services to you related to the Platform. All other requests for technical and operational assistance related to the use of the Platform (including assistance with technical support and initial configuration, training and other on-boarding services with respect to the Platform) should be directed to the registered teletherapy partner (“Therapist”) you have separately engaged to assist you with such matters.
- Engaging a Therapist for Support Services. All Therapists that we have authorized to use the Platform for work with our customers have been vetted by us as described in Section c below, and their access to and use of the Platform is subject to a separate written agreement between us and the applicable Therapist. When you choose to interact with a Therapist through the Platform, and you and the Therapist agree on terms for the delivery of any support services supporting your use of the Platform, a “Therapist Agreement” is formed directly between you and the Therapist. THE THERAPIST AGREEMENT IS SOLELY BETWEEN YOU AND THE THERAPIST AND WE ARE NOT A PARTY TO ANY THERAPIST AGREEMENT. For your convenience only, upon your request we will provide a set of suggested terms and conditions for you to use as a template when negotiating a Therapist Agreement with a Therapist. You may adopt our template, modify portions as you see fit or substitute your own template entirely for yourTherapist Agreement with a Therapist you work with via the Platform; provided, however, that you may not in any case include terms in yourTherapist Agreement that are inconsistent with the terms and conditions of this Agreement. Notwithstanding the foregoing, and whether or not you employ the suggested terms and conditions we provide, all Therapist Agreements must contain the following disclaimer:
“THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE AND AGREE THAT MIND INFORMATION, Inc. (A) IS NOT A PARTY TO THIS THERAPIST AGREEMENT; (B) IS NOT RESPONSIBLE FOR OR IN ANY WAY LIABLE TO ANYONE WITH REGARD TO ANY DISPUTES ARISING UNDER THIS THERAPIST AGREEMENT; (C) IS NOT THE PROVIDER OF SERVICES UNDER THIS THERAPIST AGREEMENT AND HAS NOT IN ANY WAY ENGAGED THE PERSON PROVIDING SERVICES UNDER THIS THERAPIST AGREEMENT AS AN AGENT OR EMPLOYEE ACTING ON ITS BEHALF; AND (D) IS NOT RESPONSIBLE FOR ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES MADE BY ANY PARTY TO THIS THERAPIST AGREEMENT AND HAS IN NO WAY APPROVED OR ENDORSED SUCH STATEMENTS.”
If you are unsatisfied with the service you receive from a particular Therapist, your choice is to engage a different Therapist and/or exercise any remedies which you’ve negotiated for under your Therapist Agreement. You acknowledge and agree that we disclaim all responsibility and liability to you for any Therapist Agreements you have with any Therapist or any disputes with any Therapist pertaining to any Therapist Agreement, as described in further detail in Section 14.c below.
- Uses of the Platform.
- Accessing the Platform. We strive to provide a reliable and useful experience when using our Platform, but we do not guarantee that our Platform will be available at any specific time and we will not be liable for any reason if you, your Organization User, any Teacher, any Guardian or any Student cannot access the Platform.
- Account Security. If you, your Organization User, your Teachers, your Students or their Guardians choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you (and the applicable individual) must treat such information as confidential, and you (and the applicable individual) must not disclose it to any other person or entity. If you permit any other person to use your account, you will be responsible for their activities while using the Platform. You agree to notify us promptly of any unauthorized access to or use of any user name or password assigned to you or any other breach of security. Accessing the Platform without proper user name and password is strictly prohibited, constitutes a breach of this Agreement resulting in the termination of your right to use the Platform, and may violate copyright and other laws.
- Content Provided by Third Parties. The Platform may include content provided by third parties. All statements or opinions expressed in these materials, other than the content provided by us, are solely the opinions and the responsibility of the third party providing those materials. These materials do not necessarily reflect our opinion. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties. If the Platform contains links to other sites and resources provided by third parties, these links are provided for your convenience only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the linked third party websites, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
- General. During the Term and for a period of five years thereafter, we and you (each, as applicable, a “Recipient”) will hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party to this Agreement (the “Discloser”) and will not disclose Discloser’s Confidential Information to any third party (other than our subcontractors as permitted in Section c above) nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. The terms and existence of this Agreement and all non-public information related to the Platform and the features, functionality and performance thereof are all our Confidential Information, and Your Data (including, for the avoidance of doubt, all Student Data) is your Confidential Information.
- Exceptions. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser, or (iv) is required to be disclosed pursuant to applicable law or the valid order of a court or governmental agency. If the Recipient is required to disclose any Confidential Information to comply with applicable law or a valid order, then the Recipient must give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
- Trade Secret Protection. Notwithstanding the foregoing, each party’s confidentiality obligations will survive with respect to the other party’s Confidential Information that is a trade secret for so long as such Confidential Information continues to be a trade secret under applicable law.
- Security of Student Data.
- Privacy Practices. We process all Student Data consistent with our Notice Privacy Practices available online at https://www.lexercise.com/about/legal/notice-privacy-practices-lexercise-schools. We will not use Personally-Identifiable Information contained in Student Data to target advertising to Students or Guardians.
- Security Program. We will maintain and implement a written data security program that contains commercially reasonable administrative, technical, and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or integrity of Student Data that we process on your behalf, including the unauthorized or accidental acquisition, destruction, loss, alteration or use of, and the unauthorized access to, Student Data.
- Review of Security Program. We will review and, as appropriate, revise our data security program at least annually or whenever there is a material change in our business practices that may reasonably affect the security or integrity of Student Data.
- Physical and Environmental Security. We will ensure that our information processing facilities that handle, process, and store Student Data are housed in secure areas and protected by perimeter security, such as barrier access controls that provide a physically secure environment from unauthorized access, damage, and interference.
- Security Breaches.
- We will promptly report to you any unauthorized acquisition, access, use or disclosure of Student Data maintained on servers owned or otherwise licensed by us from a third party (e.g., the Hosting Services Provider) of which we are aware (each, a “Security Breach”). We will also use diligent efforts to investigate and remedy any such Security Breach in a timely manner and deliver to you a root cause assessment and future incident mitigation plan with regard to each Security Breach. We will use our best efforts to prevent a recurrence of any such Security Breach.
- We will not inform any third party of any Security Breach without first obtaining your prior written consent, other than to inform a complainant that the matter has been forwarded to your legal counsel. We each will reasonably cooperate with each other in good faith in determining and carrying out an action plan for providing all notifications of Security Breaches required by applicable law. Notwithstanding the foregoing, we reserve the right, in our sole discretion, to report criminal acts relating to the use and disclosure of Student Data to applicable government authorities and will notify you as soon as practicable that such reporting has occurred. With respect to instances in which we are considering notifying government authorities concerning civil, but not criminal, acts, we will notify you in writing and consult with you prior to making any such notification. We each will endeavor in good faith to reach agreement on the need and nature of such notification. If such agreement cannot be reached within 48 hours after we have provided you with written notice, we will have the right to inform government authorities solely to the extent required by applicable law.
- We agree to reasonably cooperate with you, at your expense, in any litigation, investigation, or other action reasonably deemed necessary by you to protect your rights relating to the use, disclosure, protection, and maintenance of Student Data. We agree to maintain and preserve all documents, records, and other data related to any Security Breach.
- If any such Security Breach results from our material breach of this Agreement or any act or omission on our part or the part of any of our employees that constitutes gross negligence or willful or intentional misconduct, we will reimburse you for all reasonable costs and expenses you may incur in providing any notification of such Security Breach required by applicable law.
- Reputable Hosting Provider. During the Term, we may provide our hosting services using the Hosting Services Provider. You consent to our use of the Hosting Services Provider to provide our hosting services and acknowledge and agree that the Hosting Services Provider’s (i) security programs, policies, procedures, controls and technologies, and (ii) data backup and disaster recovery policies and procedures, are consistent with industry best practices thereby resulting in compliance with the requirements of this Section 8.
- Additional Provisions For Schools and School Districts. If you are a school or a school district then, with respect to your Students, the following additional provisions apply: We will promptly make available to you upon request copies of any Student Data in our possession and will reasonably cooperate with you in responding to requests from Guardians or Students (where Students themselves are of eligible age under applicable law) to review and correct Personally-Identifiable Information contained within Student Data as necessary to satisfy FERPA, COPPA or state law access requirements. In addition to our obligations upon termination under Section 12.c below, and subject to our rights under Section 11.d below, upon your request at any time during the Term, we will promptly destroy or return to you your Student Data, whether in our possession or in the possession of any of our subcontractors; provided, however, that (x) we may retain Student Data in our backups, archives and disaster recovery systems until such Student Data is deleted in the ordinary course (so long as it remains subject to all confidentiality and other applicable requirements of this Agreement), and (y) you acknowledge that our return or destruction of certain Student Data may affect the quality or functionality of the Platform, and we will not be liable to you for any resulting issues due to insufficient or incomplete data or inputs.
- Fees and Payment.
- Fees. You will pay to us the fees and charges described in your Subscription Agreement and Service Orders (the “Fees”) in accordance with your Subscription Agreement and Service Orders and this Section. Except as otherwise expressly provided in this Agreement, all payment obligations are non-cancelable and all Fees once paid are non-refundable.
- Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of all applicable sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
- Payment. You will make all payments in US dollars. Invoiced amounts are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.
- Ownership and Intellectual Property Rights.
- Lexercise IP. We (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to our name, logos and other trademarks, the Platform and the Documentation, including all new versions, updates, revisions, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights (the “Lexercise IP”), and as such the Lexercise IP is protected by federal, state, foreign and international copyright, trademark, patent, trade secret and other intellectual property and proprietary rights laws. To the extent we develop corrections, enhancements, improvements, derivative works or software relating to the Lexercise IP based upon ideas or suggestions submitted by you to us, you hereby irrevocably assign your rights to such ideas or suggestions or joint contributions to us, together with all intellectual property rights in or relating thereto. We are not granting you any right, license or authorization with respect to any of the Lexercise IP or any Third-Party Materials except as we’ve specifically provided in Section 4 We and the respective rights holders in any Third-Party Materials reserve all other rights in and to the Lexercise IP and any Third-Party Materials.
- Your Data and Student Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data (including, for the avoidance of doubt, all Student Data), including all intellectual property rights relating to Your Data and Student Data, subject only to the rights you grant to us in Sections c and 11.d. This Agreement does not give us any rights, implied or otherwise, to Your Data or Student Data, except as expressly stated in this Agreement.
- Right to Use Your Data and Student Data. During the Term, you grant all such rights and permissions in or relating to Your Data and Student Data to us and our subcontractors as are necessary to provide the Platform to you and perform any related services.
- Right to Use De-Identified Student Data. Additionally, you agree we may use a version of the Student Data that has all Personally-Identifiable Information removed (“De-Identified Data”) for research purposes, to improve the Platform and the quality of our analytics, and to prepare aggregated statistical information used for demonstrating the effectiveness of the Platform, and that this right will survive any expiration or termination of this Agreement. We will not (and any transferees of such materials will not) attempt in any way to re-identify any De-Identified Data except with your prior written consent.
- Publicity Rights. We may, without your consent, include your name, trademarks and/or logos (the “Marks”) on our website and/or in other sales and marketing materials (including in one or more press releases) in order to factually identify you as a current or former customer (as the case may be). We may also, with your prior approval, include the Marks and additional information regarding the services provided to you hereunder in one or more case studies illustrating and highlighting your use of the Platform.
- Term and Termination.
- Term. The initial term of this Agreement and any renewal provisions are as indicated in your Subscription Agreement. The initial term and each renewal term are referred to in this Agreement as the “Term.”
- Termination. In addition to any other termination rights described in this Agreement or your Subscription Agreement, this Agreement may be terminated at any time by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (i) is incapable of cure, or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach.
- Effect of Termination. If this Agreement is terminated or expires, then: (i) except as provided in Section d above, all rights, licenses and authorizations granted by one party to the other will immediately terminate, (ii) we may disable your, your Organization User’s, your Teachers’ and any Students’ and Guardians’ access to the Platform, and (iii) except as provided in Section 11.d above, we each will cease all use of the other party’s Confidential Information and promptly destroy (or at such other party’s request return) all of the other party’s Confidential Information, except that each party may retain Confidential Information in its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course (so long as it remains subject to all confidentiality and other applicable requirements of this Agreement).
- Surviving Terms. Sections 4.b (Limitations and Restrictions), 7 (Confidentiality), 11 (Intellectual Property Rights), 12.c (Effect of Termination), 13.b (Your Assurances), 14 (Disclaimers), 15 (Indemnification), 16 (Limitations of Liability), 17 (Miscellaneous), 18 (Definitions) and this Section will survive any expiration or termination of this Agreement.
- Mutual. Each party represents and warrants to the other that: (i) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement, and (ii) it will at all times conduct itself under this Agreement in accordance with all applicable federal and state laws, rules and regulations.
- By Us. We warrant that: (i) the Platform will at all times during the Term substantially conform in all material respects to the specifications set forth in your Subscription Agreement and the Documentation; and (ii) we have used and will continue to use commercially reasonable efforts consistent with industry standard practices to ensure that the Platform does not contain (and will not introduce) any Harmful Code into any of your devices, software, systems or telecommunications equipment.
- Warranty Limitations. The warranties in Section c above do not apply to any non-conformance resulting from: (i) use of the Platform in a manner inconsistent with this Agreement or the Documentation, (ii) the operation of or access to your or a third party’s system or network, or (iii) any Third-Party Materials. Additionally, if we breach the warranty in Section 13.c(i) above, we will, within a commercially reasonable period of time, at our sole option, and at our sole cost and expense, either (x) modify, fix or correct the Platform to remedy such non-conformity, or (y) replace the non-conforming portion of the Platform, in each case without causing a material loss of features or functionality Platform. If we do not cure the breach as provided in the preceding sentence within a commercially reasonable period of time after our receipt of written notice from you regarding the breach (which in all cases will be a period of no less than 30 days following our receipt of such notice), then you may, effective upon your written notice, terminate this Agreement and we will promptly refund to you, on a pro rata basis, the share of any Fees prepaid by you for the future portion of the Term that would have remained but for such termination. THE REMEDIES DESCRIBED IN THIS SECTION 13.d ARE YOUR SOLE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY BREACH OF THE WARRANTY PROVIDED IN SECTION 13.c(i).
- General Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED SECTION 13, ALL SERVICES AND ALL LEXERCISE IP ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE PLATFORM (INCLUDING, WITHOUT LIMITATION, ANY SERVICES OBTAINED THROUGH IT) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
- Responsibility for Teacher Interaction. The Platform is solely designed to facilitate communications, payments and workflow between you, your Organization User and your Teachers, on the one hand, and the Therapists you have elected to work with, on the other hand, and to make its contents available for you, your Organization User, your Teachers, your Students and their Guardians. We are not responsible for (and will not be liable for) interactions between you and your Organization User, your Teachers or your Therapists, on the one hand, and Students and/or Guardians, on the other hand, or for how you and your Organization User, your Teachers or your Therapists choose to utilize the Platform in interactions with Students and/or Guardians.
- Responsibility for Therapist Interaction. We are not a party to any relationship or contract between you and the Therapists you have elected to work with via the Platform, except for our role as the limited authorized agent acting on behalf of the applicable Therapist for the purpose of accepting payments from you on behalf of the Therapist and transmitting such payments to the Therapist. We are not responsible for any contracts that you may upload to the Platform other than making such contracts or proposals available for review and signature (including e-signature) as authorized by you. All such dealings are solely between you and the applicable Therapists. We will use reasonable efforts to vet and to validate the qualifications of Therapists who wish to register for the Platform, including by (i) requiring each individual that will act as or on behalf of a Therapist through the Platform to pass a qualification examination, (ii) requiring each individual that will act as or on behalf of a Therapist through the Platform to provide documentation of their relevant education and experience, (iii) requiring each individual that will act as or on behalf of a Therapist through the Platform to have earned at least 100 hours of practical experience serving clients with dyslexia or other similar learning difficulties, and (iv) engaging in on-going review of feedback regarding such individuals. Beyond this, we cannot and do not control, are not responsible for, and make no representations regarding (1) the quality, timing, availability for scheduling, suitability, reliability, safety, or legality of any services advertised or promoted by Therapists, (2) the truth or accuracy of any advertisements or promotional materials supplied by Therapists, (3) the skills, talents, experience and/or qualifications of any individuals acting as or on behalf of a Therapist through the Platform, or (4) whether any service offered by Therapists will meet your particular requirements. The availability of any Therapist to provide services via the Platform does not imply our endorsement of such services for your unique needs. We will not be responsible for in any way intervening in, mediating or resolving any dispute between you and a Therapist under a Services Agreement, whether on your behalf or on behalf of any Therapist. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE THERAPISTS, YOU HEREBY AGREE TO RELEASE US (AND ALL OF OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- IP Infringement Claims. We will defend you from and against any suits, actions, proceedings, claims or demands (“Claims”) brought by a third party, and will indemnify and hold you harmless from any associated liabilities, damages, losses, fees, expenses and costs (including reasonable attorneys’ fees) (“Losses”) finally awarded by a court of competent jurisdiction or paid in accordance with a settlement agreement with such third party, in each case to the extent the same are based on allegations that the Platform (excluding Your Data) or your use thereof in accordance with this Agreement infringe any U.S. patent, copyright or trademark of such third party, or misappropriates the trade secret of such third party (each, an “Infringement Claim”). Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (a) access to or use of the Platform in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (b) modifications or configurations made to the Platform, as applicable, by anyone other than us (or a party acting under our direction) without our prior written consent; or (c) any action taken by you, any Organization User, any Teacher or any Student or Guardian relating to use of the Platform, as applicable, that is outside the scope of the rights and authorizations granted in this Agreement.
- Mitigation. If the Platform is, or in our opinion is likely to be, the subject of an Infringement Claim, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the Platform as contemplated by this Agreement, (ii) modify or replace the Platform to make it (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, as determined in our reasonable discretion, then we may terminate this Agreement upon written notice and promptly refund to you, on a pro rata basis, the share of any Fees prepaid by you for the future portion of the Term that would have remained but for such termination.
- Procedures. You must immediately notify us of any Infringement Claim, allow us to control the defense and settlement of the claim, and provide reasonable cooperation to us (at our expense) in the defense of the claim. We will not enter into a settlement of any such claim in a manner that imposes any liability on you without your prior written consent.
- Sole Remedy. THIS SECTION 15 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE PLATFORM, DOCUMENTATION OR ANY OTHER LEXERCISE IP) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Limitations of Liability.
- Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE PLATFORM, OR (iii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF (i) $50,000, OR (ii) THE AGGREGATE AMOUNT PAID TO US HEREUNDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM HEREUNDER (NOT TO EXCEED $250,000). THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Exceptions to Limitations. The exclusions and limitations in this Section 16 will not apply to a violation of Section 4.b (Limitations and Restrictions), a party’s breach of Section 7 (Confidentiality), your payment obligations under Section 10 (Fees and Payment), a party’s obligations under Section 13.b (Your Assurances) or Section 15 (Indemnification), or liability for a party’s fraud, gross negligence or willful or intentional misconduct.
- Counterparts. Any Subscription Agreement or Service Order may be executed in one or more counterparts, each of which will be an original, but taken together will constitute one and the same instrument. Execution of a facsimile copy (including PDF) or execution through electronic means will have the same force and effect as execution of an original.
- Severability and Waiver. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Governing Law and Venue. Unless otherwise specified in your Subscription Agreement, this Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of North Carolina, without regard to its conflicts of law provisions, and the sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the state of North Carolina, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
- Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail in portable document format (.pdf), certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the most recent Subscription Agreement (or to such other address or e-mail address specified by a party pursuant to the provisions of this Section).
- Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent; provided, however, that either party may assign, delegate or otherwise transfer this Agreement without restriction: (i) in whole or in part to its affiliates, or (ii) in its entirety to an entity in good financial standing that acquires all or substantially all of the assigning party’s business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, stock sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
- No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent, contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
- Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire (a “Force Majeure Event”), except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards).
- Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach (i) by you of the limitations and restrictions in Section b (Limitations and Restrictions), or (ii) by either party of any of its obligations under Section 7 (Confidentiality) would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Other Definitions. The terms “you” and “your” as used throughout this Agreement refers to the school, school district, tutoring center or other organization or commercial entity entering into the Subscription Agreement to obtain a subscription to our Platform. In addition, capitalized terms that are used in this Agreement have the meanings described below:
“COPPA” means the Children’s Online Privacy Protection Act and its corresponding implementing regulations.
“Documentation” means the online, electronic and written documentation we make available to you which describe the functionality, components, features or requirements of the
“FERPA” means the Family Educational Rights and Privacy Act and its corresponding implementing regulations.
“Guardian” means the parent or legal guardian of a Student that has been granted valid access credentials to log in to the Platform.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“Organization User” means an individual employee you have designated to access and manage your Platform account on your behalf, including, for example, for the purpose of managing Teacher accounts or adding additional Student seats.
“Permitted Use” means accessing and using the Platform and presenting (under the guidance of a Teacher) the Platform’s contents and instructional materials to Students, in each case for the purpose of furthering the education of such Students (e.g., identifying and treating dyslexia and other similar learning difficulties in such Students).
“Personally-Identifiable Information” means individually identifiable information about a natural person, including, without limitation, (a) a first and last name, (b) a home or other physical address, including the street name and name of a city or town, (c) e-mail address, (d) telephone number(s), (e) any other identifier that permits the physical or online contacting of a specific individual, and/or (f) information concerning an individual maintained in personally-identifiable form in combination with an identifier described in clauses (a)-(e) of this definition.
“PPRA” means the Protection of Pupil Rights Amendment and its corresponding implementing regulations.
“Subscription Agreement” means a Subscription Agreement or Service Agreement executed by you and us that references this Agreement, which may include one or more Service Orders, and which is incorporated into this Agreement for all purposes.
“Service Order” means an order form or purchase order which is used to procure additional Student seats during the Term.
“Student” means each individual student to whom you present the Platform’s instructional materials as permitted by this Agreement.
“Student Data” means any information, data or other content of or about Students or their Guardians collected via the Platform. Student Data may include, without limitation, Personally-Identifiable Information of Students or their Guardians that the Students, their Guardians, Teachers or your Organization User have input and submitted to the Platform.
“Teacher” means each teacher in your employ that has been granted valid access credentials to log in to the Platform.
“Therapist Agreement” means a Therapist Agreement executed by you and the supporting Therapist.
“Your Data” means information, data and other materials that are collected, uploaded or otherwise provided by you, your Teachers, your Organization User, your Student or their Guardian by or through the Platform in connection with this Agreement. For the avoidance of doubt, Your Data includes all Student Data.