EMERGENT LEARNING DIGITAL, LLC
TERMS OF SERVICE AGREEMENT
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING OR USING ANY PART OF THE SERVICE, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED AND COMPANY SHALL PROMPTLY CANCEL THIS TRANSACTION AND USER MAY NOT ACCESS OR USE ANY PART OF THE SERVICE. THIS AGREEMENT IS APPLICABLE FOR ALL RELEASED VERSIONS OF THE SERVICE INCLUDING, BUT NOT LIMITED TO BETA VERSIONS. THIS AGREEMENT MAY BE AMENDED FROM TIME-TO-TIME AT THE SOLE DISCRETION OF COMPANY. COMPANY SHALL PROVIDE NOTICE TO USER OF AMENDMENTS BY UPDATING THE TERMS OF SERVICE. USER SHALL HAVE THE OPPORTUNITY TO REFUSE SAID AMENDMENTS SOLELY BY CLICKING DECLINE AND REQUESTING TERMINATION OF ACCESS TO THE SERVICE.
1. Service Terms
a. Description. The Service is proprietary to Company and is protected by U.S. and foreign intellectual property laws and international intellectual property treaties. User’s access to the Service is licensed and not sold. The Service is a platform to access electronic medical, educational and treatment records, and share health, educational and behavioral information about individuals enrolled on the Company’s website.
b. Use of Third Party Vendors. User is aware that the Service implements various third party software, platforms, and equipment (collectively “Vendors”). User shall abide by all Vendors’ individual terms of service agreements, if applicable. COMPANY MAKES ABSOLUTELY NO WARRANTIES WITH REFERENCE TO THIRD PARTY VENDOR SOFTWARE AND/OR SERVICES.
c. Accessibility and Function. User agrees that from time to time, the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment (hardware) malfunctions, (ii) software malfunctions, (iii) periodic maintenance procedures or repairs which Company may undertake from time to time, or (iv) causes beyond the reasonable control of Company or which causes are not reasonably foreseeable by Company. COMPANY IS NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR THE PERFORMANCE AND/OR RELIABILITY OF THE PLATFORM, SYSTEM, EQUIPMENT OR OTHERWISE, OR USER’S INTERNET SERVICE PROVIDER (“ISP”).
d. Equipment. .User shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for User’s use of the Service including, without limitation, telecommunications and Internet connection(s), ISP, web browsers and/or other equipment, programs and services required to access and use the Service.
e. Grant of License. Company grants User, pursuant to the terms and conditions of this Agreement, a nonexclusive and nontransferable license to use the Service during the term of this Agreement for use of the Service on a single workstation.
f. Modifications; Reverse Engineering. User agrees that only Company shall have the right to alter, maintain, enhance or otherwise modify the Services. Customer shall not disassemble, decompile or reverse engineer the Services computer program.
g. Title. User agrees that Company owns all copyright, trade secret, patent, trademark and other proprietary rights in and to the Services, including all modifications made thereto.
2. Confidentiality/Security of User’s System
a. Confidentiality User agrees that the Service contains proprietary information, including trade secrets, know-how and other confidential information that is the exclusive property of Company. During the term of this Agreement and at all times after its termination, User shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by this Agreement. Customer shall not disclose any such proprietary information concerning the Service without the prior written consent of Company.
b. Security of User’s System.
User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores via the Service or on any computer or related equipment that is used to access the Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person, entity, corporation, limited liability company, partnership, organization, association or otherwise.
a. Collection. Recurring subscription fees will be billed to User’s credit/charge card or paid by check (unless otherwise waived by Company). User shall promptly pay Company in the event of any refusal by User’s credit card issuer to pay any amount to Company for any reason. User agrees to pay interest at the rate of two percent (2.0%) per month on any outstanding balance, together with costs of collection, including attorney's fees and costs, and any applicable bank fees. In addition to all other remedies available to Company, in the event User fails to pay any amount due as set forth herein, Company may, at its sole discretion, immediately suspend or terminate this Agreement and User’s access to the Service, which suspension and/or termination shall not preclude Company from pursuing additional remedies available to Company. Company reserves the right to report delinquent accounts to appropriate credit agencies.
b. Term/Automatic renewal. The term of this agreement shall begin upon User’s commencement of the Service and shall automatically renew on the basis as chosen by User at the time of contract initiation. Termination by User prior to automatic renewal of term must be supplied in written form at least 30 days prior to the expiration of the then current term and must comply with the termination procedures set forth in Section 6 of this Agreement. Should the subscription be terminated prior to the current subscription period expiration date and pursuant to Section 6 of this Agreement, no refund shall be issued to User by Company.
4. User Representations
User represents and warrants to Company that: (a) User is over the age of eighteen (18) and has the power and authority to enter into and perform User’s obligations under this Agreement, (b) all information provided by User to Company is truthful, accurate and complete, (c) User is the authorized signatory of the credit or charge card provided to Company to pay the Fees, (d) User shall comply with all terms and conditions of this Agreement including, without limitation, the provisions set forth in section 5, (e) User, and not the Company, is solely responsible for the security and use of User’s password, (f) User has provided and shall provide accurate and complete registration information including, without limitation, User’s legal name, address and telephone number, (g) User acknowledges that all right, title, and interest to the Service belongs to Company. Company reserves all rights not expressly granted to User in this Agreement and that User may not sublicense, transfer, or assign the Service, directly or indirectly, to any person, entity, partnership, organization, association or otherwise, for any reason.
5. Prohibited Uses
a. Errors, Acts, Omissions and Unacceptable Use. User is solely responsible for any and all errors, acts and omissions that occur under User’s account or password, and User, directly or indirectly, agrees not to engage in, facilitate, or encourage any unacceptable use of the Service which unacceptable use includes, without limitation, use of the Service to: (i) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial e-mail, (ii) disseminate or transmit material that, to a reasonable person may be considered abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious, (iii) disseminate, store or transmit files, graphics, software or other material that actually, impliedly, or potentially infringes the copyright, trademark, patent, trade secret, trade name or other intellectual property right of any person, entity, partnership, organization, association or otherwise, (iv) create a false identity or to otherwise attempt to mislead any person, entity, partnership, organization, association or otherwise, as to the identity or origin of any communication, (v) distribute, re-distribute or permit transfer of content in violation of any export or import law and/or regulation or restriction of the United States of America and its agencies or authorities, or without all required approvals, licenses or exemptions, (vi) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network, (vii) disseminate, store or transmit viruses or any other malicious code or program; or (viii) engage in any other activity deemed by the Company, in its sole discretion, to be in conflict with the spirit or intent of this Agreement.
b. Dissemination. User may not disseminate software, username(s) and/or password(s) to any other person, entity, partnership, organization, association or otherwise. Internet Protocol ("IP”) addresses may be recorded by the Service to prevent account misuse.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior written notice to Company. Company reserves the right, in its sole discretion and without prior notice to User, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service, (b) suspend User’s access to or use of all or any portion of the Service, and (c) terminate this Agreement.
7. Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT USER’S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE. COMPANY MAKES ABSOLUTELY NO WARRANTIES WITH REFERENCE TO THIRD PARTY VENDOR SOFTWARE AND/OR SERVICES.
8. Limitation of Liability/Limitation of Recovery
UNDER NO CIRCUMSTANCES SHALL COMPANY, DIRECTLY OR INDIRECTLY, BE LIABLE TO USER OR ANY OTHER PERSON, ENTITY, PARTNERSHIP, ORGANIZATION, ASSOCIATION OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET IN GENERAL, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PARTY ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR ANY DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; THUS, THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6. COMPANY IS NOT LIABLE FOR ANY ITEMS VIEWED OR TRANSMITTED VIA THE SERVICE. COMPANY IS NOT LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY ACTS TAKING PLACE WHICH ARE NOT VIEWED OR TRANSMITTED VIA THE SERVICE. COMPANY IS NOT OBLIGATED, DIRECTLY OR INDIRECTLY, TO TAKE ANY STEPS TO PREVENT OR CORRECT ANY ILLEGAL, ABUSIVE OR OTHERWISE INAPPROPRIATE ACTIVITY PERFORMED BY USER, NOR IS COMPANY OBLIGATED, DIRECTLY OR INDIRECTLY, TO ARCHIVE OR OTHERWISE MAINTAIN OTHER REPRODUCTION OF THE CONTENT THAT APPEARS OR IS TRANSMITTED ON THE SERVICE FOR FUTURE REFERENCE. COMPANY IS NOT LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY ACTION OR INACTION WITH RESPECT TO ANY CONTENT ON THE SERVICE. COMPANY IS NOT RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR COMPLIANCE OR LACK THEREOF BY ANY USER(S) WITH RESPECT TO ANY APPLICABLE LAWS AND REGULATIONS. COMPANY MAKES SIGNIFICANT EFFORTS MEETING OR EXCEEDING INDUSTRY STANDARDS TO INSURE THE SECURITY AND/OR FUNCTIONALITY OF SERVICE RELATED INTERNET TRANSMISSIONS BUT, DUE TO THE INHERENT NATURE OF THE INTERNET, CANNOT GUARANTEE OR WARRANT FUNCTIONALITY AND/OR SECURITY OF INTERNET TRANSMISSIONS.
NO LITIGATION, ARBITRATION OR OTHER ACTION MAY BE BROUGHT UNDER THIS AGREEMENT BY USER AGAINST COMPANY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.
User agrees to indemnify, hold harmless and defend Company, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, entity, partnership, organization, association or otherwise, arising out of or relating to: (a) a breach of this Agreement, (b) User’s use of the Service, including any data or work transmitted or received by User, and (c) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable in section 5.
a. Amendment. Company shall have the right, at any time and without prior written notice to or consent from User, to add to or modify the terms of this Agreement, simply by delivering such amended terms to User by e-mail at the address provided to Company by User or by requiring User to accept an updated Agreement upon accessing the Service. User’s access to or use of the Service after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.
b. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
c. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision shall be enforced to the maximum extent possible and the other provisions shall remain fully effective and enforceable.
d. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail or when sent by facsimile or e-mail to either parties' last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by e-mail. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
e. Governing Law. This Agreement is made in and shall be governed by the laws of the State of Illinois without reference to any conflicts of laws.
f. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association by a single arbitrator, under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
g. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by causes beyond the reasonable control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
h. Assignment. User shall not assign or otherwise transfer the Services or this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, or as part of the sale of any portion of its business, or pursuant to any merger, consolidation or reorganization, without Company’s prior written consent.
i. Survival. The terms and provisions of Sections 1 (except for 1(e)), 2, 3, 4, 5, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement.
j. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service.