CONNECTIONS LEARNING
TERMS AND CONDITIONS
VIRTUAL LEARNING PROGRAMS
Last Updated: March 20, 2012
These Terms and Conditions are applicable to the academic, teaching and ancillary services to be provided to a private or public school or school district (“Customer”) by Connections Learning, a division of Connections Education LLC (“Connections” or “CL”) (Connections and Customer sometimes referred to individually as “Party” or collectively as “Parties”), pursuant to a duly executed Agreement, in which Customer has contracted to receive certain Educational Products and Services from Connections. Connections reserves the right to change these Terms and Conditions from time to time. Such changes will become effective when Connections posts the revised Terms and Conditions on Connections’ Website (as defined below) at http://www.connectionslearning.com/connections-learning/terms.aspx. Customer should check the Terms and Conditions from time to time, as Customer is bound by the current Terms and Conditions posted on the Website. Any revised Terms and Conditions will supersede all previous versions.
1. DEFINED TERMS. Capitalized terms within the Agreement or these Terms and Conditions, and not otherwise defined therein or herein, have the meanings ascribed to them in the Index of Defined Terms, attached hereto and incorporated herein by reference.
2. GRANT OF RIGHTS AND RESTRICTIONS.
a. License. Pursuant to the Agreement executed by Customer and these Terms and Conditions, CL hereby grants to Customer a non-exclusive, nontransferable, royalty-free, limited license during the Term of the Agreement for Authorized Users to access and use Connexus® and the Content contained in Connexus®, in connection with the receipt of Educational Products and Services hereunder, and in accordance with the Terms of Use, Connexus® and the Content contained in Connexus®. CL may update the features and functions of Connexus® from time to time. Any right to use Content shall be solely for the applicable Course for which a Student is enrolled. If specified in the Agreement, CL will also provide Teachers to support the Courses. If CL Teachers are not specified in the Agreement, then Customer shall have sole responsibility to support the Students. CL may provide training and/or other services as may be specified in the applicable Agreement.
b. Permitted and Prohibited Uses. All rights not expressly granted to Customer and Authorized Users pursuant to the Agreement and these Terms and Conditions are reserved to CL, and any uses of Connexus® and Content by Customer and Authorized Users not expressly permitted in the Agreement and these Terms and Conditions are strictly prohibited.
Specifically, Customer will not, and will not permit Authorized Users, Customer’s employees or agents or any third party to: (i) access the Content or Connexus® except in connection with Courses for which a Student is enrolled, (ii) use Content except in strict compliance with the Agreement and the Terms of Use, (iii) copy, reproduce, modify, alter, transfer, transmit, perform, publish, display, sub-license, distribute, circulate provide access to, rent, or create Derivative Works from the Content or any portion thereof, (iv) decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine the source code (or the underlying ideas, algorithms, structure or organization) of the Content or of Connexus®, (v) upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of Connexus®, (vi) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the control or security systems of Connexus® or the Content, nor allow or assist a third party to do so, (vii) use the Content in a manner that disparages Connexus®, Content, CL or its content providers, or in any manner that CL may, in its sole discretion, deem inappropriate, or (viii) disclose Log-In Information (as defined in Section 2.d. below) or permit access to Connexus® and/or the Content by unauthorized persons using an Authorized User's Log-In Information.
c. Usage Guidelines and Rules of Conduct. Customer (including its employees and agents) and Authorized Users may use Connexus® and the Content for bona fide educational and other contracted-for purposes only. Customer will comply and assure compliance by its employees, agents and the Authorized Users with Terms of Use of Connexus®, Acceptable Use Policy, Privacy Policy, the School Handbook and other applicable CL policies, as may be updated from time to time by CL in its sole discretion. The Privacy Policy and Terms of Use are posted on the Website and are accessible from the Connexus® login page. Customer acknowledges that CL may also institute basic rules for academic and personal conduct for Authorized Users’ use of the Content and Connexus®, and that CL will enforce those rules in its sole discretion, including recommending to Customer the termination of access for Authorized Users in the event of their failure to adhere to those rules. Included in the rules of conduct shall be prohibitions against any Authorized User’s attempt to make inappropriate communication or contact with any other Authorized Users through Connexus®, as well as, hacking, viral infection, or other technical attempts to gain unauthorized access to or cause damage to Connexus®. Customer shall immediately provide CL with written notice of any unauthorized use or distribution of the Content or Program of which Customer becomes aware and shall take all necessary steps to ensure that such unauthorized use or distribution is terminated.
d. Security and Use of Passwords. Each Authorized User will have a user name and password for the purpose of accessing Connexus® and the Content (the “Log-In Information”). Customer and its Authorized Users must keep all Log-In Information strictly confidential, and all Log-In Information may be used only by the assigned Authorized User. Customer and its Authorized Users are responsible for maintaining the security and confidentiality of all Log-In Information, and for preventing access to Connexus® and/or the Content by unauthorized persons using an Authorized User's Log-In Information. Unauthorized access to or use of Connexus® and/or the Content by someone using an Authorized User's Log-In information may be attributed to such Authorized User.
e. Availability and Support. CL does not guarantee availability of Connexus® 24 hours per day, 7 days per week. Unless other support terms are specified by CL from time to time, CL agrees to provide Connexus® support during normal business hours Monday through Friday (9:00 a.m. to 6:00 p.m. ET), excluding holidays. CL will respond to general support issues within one (1) business day, after which they will be escalated as may be specified by CL from time to time. The contact for escalation of support issues will be as designated by CL.
f. Communications from CL. Customer acknowledges and agrees that CL may periodically contact Authorized Users for customer service purposes. By accessing Connexus® and Content, Customer and Authorized Users will have consented to receive such communications.
3. CUSTOMER RESPONSIBILITIES.
a. Equipment. Except as otherwise provided for in the applicable Agreement, Customer will be responsible for providing or assuring that Authorized Users have all the necessary computer hardware, software, modems, internet CL and other items that are needed for its Authorized Users to access Connexus® and the Content, and all costs associated with such access. The minimum specifications for the equipment needed to use Connexus® and Content are set out on the Website at: http://www.connectionslearning.com/connections-learning/technology/hardware.aspx.
b. Enrollment. Customer will provide to CL all required information in the format specified by CL in order to enroll Students and set up accounts for Authorized Users.
c. Fees and Taxes. Customer will pay all fees incurred under the Agreement within thirty (30) days after the date of invoice or pursuant to such other payment terms as may be specified in the applicable Agreement. Any payments made past their due date shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. Customer will be responsible for all forms of tax in connection with the Educational Products and Services provided by CL under the Agreement, other than taxes on CL’s income. If Customer claims tax exempt status, Customer agrees to provide CL with evidence of such tax exemption upon CL' request. To the extent that such tax exemption cannot be properly claimed or does not extend to certain taxes or transactions, Customer shall be responsible for any and all taxes that arise from the Agreement and related transactions (excluding taxes on CL’s income). All pricing set forth in any quotation, Agreement, or invoice is in United States dollars unless otherwise specified.
d. Compliance with Laws. In using Connexus®, Customer agrees to comply with federal and state privacy laws, including, but not limited to, FERPA and the regulations promulgated under FERPA, and other similar federal or state laws, administrative rules and regulations restricting commercial use of, or otherwise regulating, Student information. Customer further agrees to limit access by its employees and agents to educational records containing personally identifiable information to solely those of its employees and agents who have a legitimate educational interest for such information.
e. Hold Harmless. Customer agrees that it shall defend, indemnify and hold CL and its Affiliates and their respective agents and employees harmless against and from all costs, expenses, damages, injury or loss (including reasonable attorney’s fees and expenses) to which CL, its Affiliates and their respective agents and employees may be subject due to any causes of action, disputes, demands, lawsuits, and/or judgments (together “Claims”) arising out of or relating to (i) any wrongdoing, misconduct, negligence, or default by Customer, its agents, employees, or assigns in the execution or performance of this Agreement and (ii) activities unrelated to the Educational Products and Services provided by CL, including, but not limited to, any sports, intramural, club, or outreach activities sponsored or approved by Customer, regardless of whether such sponsorship or approval was direct, indirect, express, or tacit.
4. AUDIT. CL will have the right, with ten (10) days prior notice, to audit Customer’s use of Connexus® and the Content at Customer’s location(s). Customer will also have the right, on providing reasonable notice to CL, to request reports that are reasonable and relevant to monitoring use of and access to Connexus® and the Content. If any audit determines that the Program has not complied with the terms of the applicable Agreement, Customer will promptly pay CL any amount that is due. Customer will also reimburse CL for its cost in conducting the audit, in the event the audit determines a shortfall over five percent (5%), in the amount paid to CL.
5. ACADEMIC INTEGRITY. Customer acknowledges that with respect to all Students Enrolled in NaCA, NaCA shall be the sole decision maker with respect to all questions, issues, conflicts, or concerns relating to academic integrity and performance, including determinations as to whether to advance a student from grade to grade or course level to course level or to terminate the enrollment of a Student due to inadequate participation or academic performance.
6. TERMINATION.
a. Term. The term of the Agreement will continue for the period of time specified therein.
b. Terminations for Cause. Except as otherwise provided in the Agreement, either CL or Customer may terminate the relationship at any time for cause if the other Party is in material breach of its obligations set forth in the Agreement, and such breach continues unremedied for a period of thirty (30) days after written notice thereof is given by the non-breaching Party. A termination will be deemed for “cause” if: (i) a Party breaches any provision of the Agreement, (ii) a Party violates any law or regulation, (iii) CL commits an act that could injure Customer, or (iv) Customer commits an act that could injure CL.
c. Termination for Financial Reasons. CL or Customer may terminate the Agreement upon written notice if one or more than one of the other Party: (i) files a petition for bankruptcy, (ii) is adjudicated bankrupt by any court, (iii) makes an assignment for the benefit of creditors, (iv) takes the benefit of any bankruptcy or insolvency act, or (v) generally becomes unable to pay its debts when due. Such termination shall be effective as of the date of filing of such petition, adjudication, appointment, assignment, declaration or commencement of reorganization or liquidation proceeding or said Party's inability to pay its debt.
d. Termination or Suspend For Failure to Make Timely Payment. CL may, at its option, immediately terminate, or suspend its performance of, its Agreement with Customer any time Customer is more than thirty (30) days in arrears on its payment obligations to CL. In the event of termination or suspension by CL under this Section 6 d., Customer’s access to Connexus® (including all Authorized Users whose right of access to Connexus® is derived from CL’s contractual relationship with Customer) shall be discontinued without further notice. In the event of a suspension of access to Connexus®, access may be restored when Customer’s payment obligations are brought current and CL has received adequate assurances that Customer’s payment obligations to CL shall remain current for the remainder of the Term.
e. Obligations on Termination. In the event the Agreement is terminated by either CL or Customer for any reason: (i) each Party shall promptly (not later than ten (10) days after the effective date of termination) return to the other Party all Confidential Information, Intellectual Property and material of any type belonging to the other Party, including but not limited to, electronic versions, hard copies and reproductions and shall not retain copies of any such Intellectual Property or material except as may be expressly permitted in the Agreement, and all electronic copies shall be permanently removed from all electronic data storage devices; (ii) all access to Connexus® , Content, and the Courses shall be discontinued, (iii) each Party shall cease the use of the other Party’s trade name, trademarks, copyrights and any other form of Intellectual Property rights, and (iv) Customer shall pay CL all amounts due under the Agreement upon the earlier of their due dates or thirty (30) days after the effective date of termination. Termination of the Agreement shall not relieve the Parties of any applicable obligation or liability under the Agreement, nor shall it affect or impair the rights of a Party arising prior to such termination.
7. CONFIDENTIALITY.
a. Confidential Information. The receiving Party shall use the Confidential Information only in connection with the furtherance of the business relationship between the Parties, and the receiving Party shall make no further use, in whole or in part, of any such Confidential Information. The receiving Party agrees not to disclose, deliver or provide access to all or any portion of the Confidential Information to a third party or to permit a third party to inspect, copy, or duplicate the same. The receiving Party will disclose Confidential Information only to its employees and agents who have a need to know such Confidential Information in connection with the performance of the Agreement and who are under a written obligation to protect the confidentiality of such Confidential Information. The receiving Party will treat the Confidential Information with the same degree of care and confidentiality that the receiving Party provides for similar information belonging to the receiving Party that the receiving Party does not wish disclosed to the public, but not less than holding it in strict confidence.
b. Student Records. CL and Customer acknowledge and agree that FERPA and any regulations promulgated thereunder, the Parties have certain obligations with regard to maintaining the security, integrity and confidentiality of “education records”, as that term is defined by FERPA. The Parties acknowledge that each Party must perform its obligations under the Agreement in compliance with FERPA and any regulations promulgated thereunder. CL and Customer each designate the staff, employees and volunteers who are providing educational and/or administrative services to the Students as agents of Customer having a legitimate educational interest and thus entitled to access to educational records under FERPA. CL and Customer shall also maintain Student Records in accordance with any other applicable laws and regulations.
c. Exceptions. The foregoing shall not prevent the receiving Party from disclosing Confidential Information that must be disclosed by operation of law, provided (i) the receiving Party shall promptly notify the disclosing Party of any such request for disclosure in order to allow the disclosing Party full opportunity to seek the appropriate protective orders, and (ii) the receiving Party complies with any protective order (or equivalent) imposed on such disclosure. It is understood and agreed that this Section 6c. is not intended to permit the disclosure of education records referenced in 6b. unless permitted by applicable law.
d. Return of Confidential Information. The receiving Party agrees that it will, within ten (10) days after written request by the disclosing Party, return to the disclosing Party, or at the option of the disclosing Party, destroy and certify in writing the destruction of, all Confidential Information received from the disclosing Party, including copies, reproductions, electronic files or any other materials containing Confidential Information.
8. INTELLECTUAL PROPERTY
a. Ownership of Intellectual Property. Customer acknowledges and agrees that CL or its Affiliates and their third party vendors are the sole owners of Connexus® , Content and Courses and , any other content contained in Connexus® and any other copyrighted materials delivered to Customer through Connexus® , in connection with the Agreement (collectively the “CL IP”). Except for the limited rights granted in the Agreement, neither the Agreement, nor these Terms and Conditions, constitutes a license or other transfer by CL to Customer of any Intellectual Property rights in CL IP. All right, title, and interest in and to the CL IP, including, but not limited to, copyright, patent, trade secret, and trademark rights will remain with CL and its third party vendors and Customer will use the CL IP only as authorized under the Agreement and will not otherwise violate any copyrights or other Intellectual Property rights of CL. Any attempted sublicense, assignment or transfer by Customer of any rights hereunder or in the Agreement without CL’s prior written consent shall be void. Customer shall not remove any proprietary, copyright, patent, trademark, or any other proprietary rights legends from the CL IP. The placement of a copyright notice on any portion of Confidential Information does not mean that such portion has been published and will not derogate any claim of trade secret or confidentiality protection for the same.
b. Jointly Developed Courses. The Parties may jointly develop one or more Courses. Unless otherwise agreed by CL and Customer, any courses jointly developed by CL and Customer and all Intellectual Property rights thereto will be jointly owned by CL and Customer (“Joint Courses”). Either Party shall be entitled to modify and create Derivative Works of the Joint Courses. Customer agrees that any Joint Courses and their Derivative Works may be used by Customer solely in connection with the receipt of services under an applicable Agreement or as part of the curriculum provided to Customer’s full-time Students. Customer agrees that CL shall be entitled to copy, use, install, license, display, perform, transmit, execute, resell, print, host, distribute and otherwise commercialize the Joint Courses and their Derivative Works. Neither Party shall be required to account to the other Party for a share of the profits in connection with the authorized use of the Joint Courses and Derivative Works hereunder.
c. Trademarks. CL and Customer each grants to the other Party during the Term a non-exclusive, nontransferable license to use the logos, trademarks, service marks and/or trade names of such Party, as specified in the Agreement (the “Licensed Marks”), but solely in connection with the receipt of services under an applicable Agreement or for purposes of marketing the Program in accordance with the requirements of these Terms and Conditions and the related Agreement, and subject to any pre-approval rights set forth in these Terms and Conditions and the related Agreement. All use of the other Party’s Licensed Marks shall be in accordance with any trademark usage guidelines provided by the other Party. CL’s current Trademark Usage Guidelines can be found at: http://www.connectionsacademy.com/terms-of-use/trademark-guidelines.aspx. Each Party retains all right, title and interest in and to its Licensed Marks and any related proprietary rights not expressly granted to the other Party hereunder. All goodwill attributable to the Licensed Marks will inure exclusively to the benefit of the owner of such Licensed Marks. A Party may revoke the other Party’s license to the Licensed Marks upon written notice in the event the other Party breaches any of the terms of this paragraph.
9. REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that: (a) it has full power and authority to enter into the Agreement, and to agree to all the terms and conditions contained therein and in these Terms and Conditions, and has received all parental and other permissions required to permit CL to obtain and retain information (including personal information) from Authorized Users; (b) only Authorized Users will access Connexus® and the Content; (c) Customer and its Authorized Users will at all times use Connexus® and the Content only as expressly permitted by the Agreement and these Terms and Conditions; (d) in the event that Customer requests that CL customize the interface with Customer's trade name, trademarks or logos, and/or digitize and/or encode and/or host any of Customer's content on Connexus® and CL agrees to do so, Customer warrants that it has the full right and authority to so use and exploit any and all such trade names, trademarks, logos and content, including without limitation any and all underlying elements (the “Customer IP”), and (e) the Customer IP, any content, materials and/or information contributed by Authorized Users, and any revisions to the Content by Authorized Users, does not and will not contain any libelous, unlawful or infringing materials or content, will not infringe upon any party's proprietary rights, including, without limitation, statutory or common-law copyright, trademark and right of privacy, and will not violate any law, regulation or right of any kind whatsoever or give rise to any actionable claim or liability.
10. INDEMNIFICATION. Customer will defend, indemnify and hold CL, its Affiliates, agents and content providers, and the directors, officers, shareholders, employees, agents and representatives of each of the foregoing, harmless against and from any and all liabilities, claims, suits, losses, damages, costs, fees and expenses (including reasonable attorneys' fees) brought against or incurred by CL that arise from or relate to: (a) any violation by Customer and/or its Authorized Users of the Agreement or these Terms and Conditions, (b) any downloading of the Content except as authorized in the Agreement or these Terms and Conditions, (c) any modification or editing made to any portion of the Content, (d) the use of any portion of the Content with products or services not supplied by CL, (e) any breach of Customer’s obligations or warranties under the Agreement or these Terms and Conditions, or (f) the negligence or intentional misconduct by Customer, its employees or contractors, agents or the Authorized Users. CL will defend, indemnify and hold Customer, its officers, directors, employees and agents harmless from and against any and all liabilities, claims, suits, losses, damages, costs, fees and expenses (including reasonable attorneys' fees) brought against or incurred by Customer that solely arise from or solely relate to: (1) a material breach by CL of its obligations or warranties (subject to the disclaimer provided for in Section 11) under the Agreement or these Terms and Conditions, or (2) the negligence or intentional misconduct of CL or any of its employees, contractors and agents.
11. WARRANTY DISCLAIMER.
CUSTOMER CANNOT ASSUME THE PERFORMANCES OF CONNEXUS® OR OTHER SUCH TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY PROBLEMS RELATED THERETO WILL BE CORRECTED, DESPITE CL’S REASONABLE EFFORTS. ACCORDINGLY, EXCEPT FOR ANY EXPRESS WARRANTIES GIVEN IN THE AGREEMENT: (a) CONNEXUS® AND THE CONTENT PROVIDED UNDER THE AGREEMENT ARE PROVIDED "AS IS" TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND (b) CL AND ITS LICENSORS, DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, TITLE, NONINFRINGEMENT, COURSE OF DEALING, OR COURSE OF TRADE. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, NEITHER CL NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN CONNEXUS® AND THE CONTENT PROVIDED UNDER AN AGREEMENT WILL MEET ANY REQUIREMENTS OR NEEDS THAT CUSTOMER OR THE AUTHORIZED USERS MAY HAVE, OR THAT CONNEXUS® AND THE CONTENT WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN CONNEXUS® AND THE CONTENT WILL BE CORRECTED, OR THAT CONNEXUS® AND THE CONTENT ARE COMPATIBLE WITH ANY PARTICULAR OPERATING SYSTEM. FURTHER, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, CL MAKES NO GUARANTEE OF ACCESS TO OR ACCURACY OF THE CONTENT ACCESSED THROUGH CONNEXUS®. IN NO EVENT WILL CL BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ALTERNATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA CONNEXUS®.
12. LIMITATION OF LIABILITY.
FOR ANY BREACH OR DEFAULT BY CL OF ANY OF THE PROVISIONS OF THE AGREEMENT OR THESE TERMS AND CONDITIONS, OR WITH RESPECT TO ANY CLAIM ARISING THEREFROM OR RELATED THERETO, CL’ ENTIRE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT OR TORT, OR OTHERWISE INCLUDING NEGLIGENCE, WILL IN NO EVENT EXCEED THE LESSER OF: (a) THE AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC COURSES OR SERVICES THAT ARE THE SUBJECT OF THE CLAIM, OR (b) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS UNDER OR RELATED TO THE AGREEMENT OR THESE TERMS AND CONDITIONS, THE AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT. IN NO EVENT WILL CL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER OR THE AUTHORIZED USERS BY ANOTHER PERSON, EVEN IF CL, ITS AFFILIATES, OR ITS THIRD PARTY VENDORS HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR THEY ARE OTHERWISE FORSEEABLE. CL WILL BE LIABLE TO CUSTOMER AS EXPRESSLY PROVIDED IN THE AGREEMENT OR THESE TERMS AND CONDITIONS, BUT WILL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT OR OTHERWISE TO CUSTOMER INCLUDING ANY LIABILITY FOR NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR ELSEWHERE, THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THE AGREEMENT WILL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION, BY A CUSTOMER, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, AND WILL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR THESE TERMS AND CONDITIONS OR OF ANY REMEDY CONTAINED THEREIN. THE AUTHORIZED USERS WILL NOT BE CONSIDERED A THIRD PARTY BENEFICIARY OF ANY OBLIGATION OF CLTO CUSTOMER
13. RELEASE. Customer releases and waives all claims against CL, its Affiliates, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing, from any and all claims, damages, liabilities, costs and expenses arising out of Customer’s use of Connexus® and Content. California residents waive any rights they may have under §1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Customer agrees to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect.
14. INSURANCE. Each Party will maintain and keep in force no less than the amounts of insurance as are reasonable to cover insurable risks associated with operations under the Agreement in minimum amounts required by law or customary for that Party’s business.
15. GENERAL PROVISIONS.
a. Independent Contractors. The Parties to the Agreement are independent contractors, and no agency, partnership, joint venture, franchise, or employee-employer relationship is intended or created by the Agreement and neither Party shall have a right to bind the other Party.
b. Successors or Assigns;. The rights granted herein shall be non-transferable and non-assignable and the obligations may not be delegated except with the prior written consent of the other Party and any attempted transfer, assignment or delegation without the required consent shall be void, except that nothing in the Agreement shall prevent the acquisition of all or substantially all of the stock or assets of a Party. The Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
c. Complete Agreement; Modifications. The Agreement, together with these Terms and Conditions, constitutes the entire agreement among the Parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings, written or oral, with respect to the subject matter hereof. The Agreement may not be amended or modified in any way, nor may noncompliance with its terms be waived, except pursuant to a written instrument signed by the affected Party.
d. Severability. If any provision of the Agreement, together with these Terms and Conditions, is held to be invalid or unenforceable, it shall be ineffective only to the extent of the invalidity, without affecting or impairing the validity and enforceability of the remainder of the provision or the remaining provisions of the Agreement.
e. No Third Party Rights. The Agreement is made for the sole benefit of the Parties. Except as otherwise expressly provided, nothing in the Agreement shall create or be deemed to create a relationship among the Parties or any of them, and any third party, including a relationship in the nature of a third party beneficiary or fiduciary.
f. Waiver. Any waiver by a Party of any default or breach hereunder shall not constitute a waiver of any provision of the Agreement or of any subsequent default or breach of the same or a different kind.
g. Venue and Applicable Law. The Agreement shall be governed by the laws of the State of Maryland, without regard to conflict of laws principles. Any legal actions prosecuted or instituted by any Party under the Agreement shall be brought in a court of competent jurisdiction located in Maryland and Customer hereby consents to the jurisdiction and venue of any such courts for such purposes. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
h. Surviving Obligations. All accrued payment obligations under the Agreement, any remedies for breach of the Agreement, the following Sections will survive any expiration or termination of the Agreement: Section 3c (Fees and Taxes), 4 (Audit), Section 5d (Obligations on Termination) Section 6 (Confidentiality), Section 7 (Intellectual Property), Section 8 (Representations and Warranties), Section 9 (Indemnification ), Section 10 (Warranty Disclaimer), Section 11 (Limitation of Liability), Section 12 (Release) and Section 14 (General Provisions).
i. Force Majeure. If the performance of the Agreement, or any obligation under the Agreement, except the making of payments and compliance with Intellectual Property rights of a Party, is prevented, restricted, interfered with or delayed by reason of any law, natural disaster, labor controversy, encumbered Intellectual Property right, government action or failure to act, war or any similar event beyond its reasonable control but shall not include change in law, government action or failure to act (“Event of Force Majeure”), failure to perform shall not be deemed a breach of or default under the Agreement, and neither Party shall be liable to the other. Upon an Event of Force Majeure the non-performing Party will: (i) immediately notify the Party affected, (ii) take reasonable steps to resume performance as soon as possible, and (iii) not be considered in breach during the duration of the Force Majeure Event. In the event a Force Majeure Event continues for a period of ninety (90) calendar days, Customer or CL may elect to terminate the Agreement upon notice to the other Party.
j. Headings. All captions and headings in the Agreement or herein are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.
k. Electronic Signatures. The Agreement and related documents (including these Terms and Conditions) may be accepted in electronic form (e.g., by scanned copy of the signed document, an electronic or digital signature or other means of demonstrating assent) and each Party’s acceptance will be deemed binding on the Parties. Each Party acknowledges and agrees it will not contest the validity or enforceability of the Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Each Party further acknowledges and agrees that it will not contest the validity or enforceability of a signed facsimile copy of the Agreement and related documents on the basis that it lacks an original handwritten signature. Facsimile signatures shall be considered valid signatures as of the date hereof. Computer maintained records of the Agreement and related documents when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.
l. Publicity. Neither Party will issue any press releases or other public information about the existence of or specific details regarding the Agreement without the prior written consent of the other Party. However, Customer agrees that CL may make reference to its business relationship with Customer in CL’s marketing or sales materials.
m. Remedies. The Parties acknowledge and agree monetary damages may not be a sufficient remedy for a breach of Sections 2 (Grant of Rights and Restrictions), 6 (Confidentiality) or 7 (Intellectual Property) and that in the event of a breach or threatened breach of Sections 2, 6 and/or 7, the non-breaching Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court or administrative institution of competent jurisdiction. The Parties hereby waive the posting of a bond or other security in connection with any such action. Such remedy shall not be deemed to be the exclusive remedy for a breach of the Agreement, but shall be in addition to all other remedies available at law or in equity.
n. Attorneys Fees. If, for any reason, a successful Party incurs costs of collection and/or attorney’s fees in otherwise enforcing the Agreement, the unsuccessful Party shall be responsible for and shall pay all attorney fees, costs of collection and all other expenses associated with such collection or enforcement efforts.
INDEX OF DEFINED TERMS
Definitions
“Academic Year” shall mean the school year as defined by the School Calendar under which Customer operates.
“Acceptable Use Policy” means that certain policy governing the use of CL electronic resources, including software, hardware devices and network systems, the most current version of which can be found in http://www.CLlearning.com/CL-learning/terms/acceptable-use-policy.aspx.
“Administrative Staff” means any and all individuals employed by or otherwise providing services for or on behalf of CL or Customer.
“Affiliates” means any entity controlling, controlled by or under common control with another entity. With respect to CL, Affiliate shall also include Pearson PLC and its Affiliates. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of an entity whether through the ownership of voting securities, registered capital, contract or otherwise.
“Agreement” shall mean these terms and conditions together with the Statement of Work or Educational Services Quote (each as defined below) to which these terms and conditions are attached and/or incorporated into by reference, as well as amendments, modifications, renewals of such Statement of Work or Educational Services Quote.
“Authorized Users” shall mean the Students, Teachers, Instructional Aides, Administrative Staff, and Mentors who are authorized to access Connexus® , Content and Courses pursuant to the terms of these Standard Terms and Conditions and the related Agreement entered into by and between Customer and CL.
“Confidential Information” shall mean proprietary business, technical and financial information of each of the Parties, including for example and without limitation, each Party’s respective information concerning: (a) business strategy and operations such as business plans, methods, marketing strategies, outreach plans and sales information, pricing information and customer and prospect lists, the identities and locations of vendors and consultants providing services or materials to or on behalf of the disclosing Party; (b) product development such as product designs and concepts; (c) financial information such as budget and expense information, economic models, pricing, cost and sales data, operating and other financial reports and analysis; (d) human resource information such as compensation policies and schedules, employee recruiting and retention plans, organization charts and personnel data; (e) educational content, curricula, teaching outlines, lesson plans, testing processes and procedures; (f) Student Records and other student-related or parent-related personal information; (g) the terms of the Agreement, (h) login and password information for Connexus®; (i) technical information such as development methods, computer software, research, inventions, the design and operation of Connexus®; and (j) other similar non-public information that is furnished, disclosed or transmitted to the receiving Party or to which the receiving Party is otherwise given access by the disclosing Party, orally, in written form, in any type of storage medium, or otherwise. Confidential Information, in whatever form provided, shall remain the exclusive property of the disclosing Party at all times, and the Parties hereby acknowledge and agree that all such Confidential Information of a Party are its trade secrets. Except as specifically provided for herein, nothing contained in the Agreement or herein shall be construed as granting or conferring any rights in any Confidential Information disclosed to the receiving Party, by license or otherwise.
“CL Teachers” shall mean the persons employed by CL who provide educational instruction to Students.
"Connexus®” means the website or Learning Management System (also sometimes referred to as Education Management System) with the URL http://www.connexus.com, or such other URL as CL or its Affiliates may designate from time to time, through which Authorized Users access CL Content via a secure, password protected website. The features and functions of Connexus® may be modified and/or updated from time to time by CL.
“Content” means the components of a Course and/or SDR (as each is defined below) licensed, designed, developed, owned or provided by CL and its third party content partners and delivered in an online format through Connexus® (as defined above) or in an offline format (textbooks and other materials) to teach students in various subjects in grades K–12 and/or to deliver resources in connection with the Services (defined below). Content may include the courseware, data, documentation, text, audio, video, graphics, animation, drawings, programming, icons, images, pictures and charts, Teachlet® tutorials and LiveLesson® sessions. CL reserves the right to add Content, withdraw Content, modify and/or offer substitute Content, in its sole discretion, provided that Customer will receive reasonable notification concerning any substitution or withdrawal that is substantial.
“Course(s)” means a program of instruction provided by CL, which includes Content accessed through Connexus® and may include support from CL Teachers if specified in the applicable Agreement.
“Curriculum Guide” means the publication available at http://bluetoad.com/publication/?i=64485 which sets forth the list of courses offered by CL during a particular academic year and may sometimes be referred to in the Agreement as a “Program Guide”.
“Derivative Works” include any translation, editorial revision, annotation, elaboration, or other modification, correction, addition, enhancement, extension, condensation, upgrade, improvement, compilation, abridgement or other form in which the Content may be recast, transformed or adapted, including but not limited to all forms in which such Derivative Works may or may not infringe any of the copyrights in the Content.
“Educational Products and Services” shall mean the Educational Products and Services described in the Statement of Work or Educational Services Quote to which these terms and conditions are attached and/or incorporated by reference.
“Educational Services Quote” shall mean that certain document identified as an Educational Services Quote, executed by Customer and CL, and setting forth the rights and obligations of both CL and Customer, as well as such other business terms to which the Parties agree to be bound.
"FERPA" means the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232 (g), as amended from time to time.
"Instructional Aide(s)" means any and all individuals who are involved in supporting, facilitating or assisting in the provision of instruction, assessment and/or other Services to Students.
“Intellectual Property” means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide now or in the future, including but not limited to, moral rights and similar rights.
“Mentors” shall mean persons employed by Customer who shall be responsible for all of the non-instructional aspects of the Program that contribute to a Student’s success, including but not limited to monitoring Student attendance, monitoring Student progress, encouraging Students to complete assignments and turn in work, communicating with parents and notifying CL Teachers when Students are struggling or experience academic or personal issues that might inhibit academic achievement. Additionally, Mentors shall be responsible for receiving materials from CL and distributing them to their Students.
“Privacy Policy” means that certain statement of CL’s practices for handling personally identifiable and non-personally identifiable information gathered by CL through Connexus® or any web site maintained by CL from time to time.
“Program” shall mean collectively: (a) the Courses offered by the National CL Academy (“NaCA”), (b) granting to Students by NaCA of credit for Courses that include a CL Teacher, (c) granting to Students by NaCA of transfer credit for non-CL courses that NaCA determines to be eligible for credit, (d) granting by NaCA of a high school diploma to eligible Students, (e) the additional Educational Products and Services specified to be provided by CL under the Agreement, and (f) the services to be performed by Customer under the Agreement.
“Program Guide” shall have that meaning ascribed to “Curriculum Guide”, defined above.
“School Calendar” shall be the days when the Educational Products and Services under this Agreement will be delivered to Students and Mentors, as agreed to by the Parties. The initial School Calendar is as specified in the School Handbook. CL will provide Educational Services on those days established to be the School Calendar for the Academic Year. The School Calendar for each Academic Year shall be as approved by Customer taking into account all reasonable comments and suggestion by CL and shall meet any regulatory requirements for days and hours of instruction required by law or regulation.
“School Handbook” shall mean the set of policies, rules and guidelines that are to be followed by Students, Instructional Aides and Mentors.
“SDR” means Service Delivery Resource and relates to any tools, instructions, assessments or other support materials used in the delivery of Services, either through Connexus® or otherwise.
“Services” means any service provided by CL to Students, including therapeutic or educational services, under the terms of the Agreement between Customer and CL.
“Statement of Work” shall mean that certain document identified as a Statement of Work, executed by Customer and CL, and setting forth the rights and obligations of both CL and Customer, as well as such other business terms to which the Parties agree to be bound.
"Student" means any person who is enrolled in: (1) a Program, or (2) a Course offered by CL under the terms of the Agreement.
“Student Records” shall mean those “educational records,” as defined in subsection (a)(4)(A) of FERPA (as defined above) , which Customer or CL is required to retain in accordance with state law.
“Teacher” means any and all educators (including CL Teachers) involved in providing instruction, assessment and/or other educational support of Students.
“Terms of Use” means certain rules governing how Authorized Users may and may not use Connexus® and any Content accessible through Connexus®. The most current version is located at https://www.connexus.com/public/termsofuse.html
“Website” means the CL website with the URL https://www.connectionslearning.com and any subpages connected thereto.