Terms and Conditions

PALS MARKETPLACE

Download Terms of Service

 

Effective November 3, 2016

 

These Terms of Service (together with the Other Contract Documents listed below, collectively, the “Terms” or this “Agreement”) is a legal agreement between you and IO Education, LLC, a Delaware limited liability company ("IO Education"), that governs your use of the www.palsmarketplace.com  website and associated webpages (collectively, the “Site”) and the Phonological Awareness Literacy Screening (“PALS”) assessment, diagnostic, screening and curriculum products and services available through the Site (collectively, the “Services”).

Please read these Terms carefully.  Your use of the Site or submission of an order for the Services constitutes your agreement, without modification, to all of the terms, conditions, and notices in these Terms. If you do not accept these Terms, you may not use the Site or the Services.  Notwithstanding the foregoing, if you and we have entered into a separate written agreement that contains terms that specifically reference and apply to your use of any of the Services (the “Other Service Terms”), then in the event of any conflict between these Terms and the Other Service Terms, the Other Service Terms shall apply.

 

As used in these Terms, "we," "our" or "us" refers to IO Education. "You," "yours" or other similar designation refers to the person accessing or using the Site or Services and, if that person is a representative of an entity that is our customer, that entity (our “Client”). With respect to your use of the Site, the “Other Contract Documents” means our Marketing Website Privacy Policy.  With respect to your use of the Services, the “Other Contract Documents" means our Platform Privacy Policy and any Order (defined below) for the Services.

We reserve the right to change these Terms at any time by posting revised Terms on the Site or by sending an email to the last email address you gave us, so we encourage you to review this web page periodically. The changes will be effective immediately when posted. Your use or continued use of the Site or Services following the posting or email notification of any changes to these Terms shall constitute your (and, if you are an administrative user for a Client, the Client’s) acceptance of the changed Terms.  

ELIGIBILITY

Before you can access or use the Site or the Services, you must be able to enter into a legally binding contract with us.  This means that (1) if you are a person, you must be at least eighteen (18) years old and have the legal capacity to enter into a contract, and (2) if you are using the Site or the Services on behalf of a Client, you must have the legal authority to bind such Client to these Terms.  To use the Services, you must complete our registration completely and accurately, including, without limitation, agreeing to these Terms and providing us with correct contact and billing information. By using the Site or the Services, you represent and warrant that you satisfy these qualifications. 

ACCOUNTS

A Client must register and create an account with us in order to use the Services. This may be done via the Site using our online marketplace, or it may be done via the Client’s acceptance or acknowledgment  (which may via email) of a completed ordering document (which may be electronic) describing the Services (the “Order”).   You agree to provide and maintain your account with accurate and complete information about yourself and your authorized users as prompted by the Site. By providing us with such information, you authorize us and our third party agents to make any inquiries we consider necessary to confirm such information. You will not impersonate any third party or misrepresent your identity or affiliation with any third party, including using another person's account information, or another person's name, likeness, voice, image or photograph.

You are responsible for maintaining the confidentiality of your personal information and for restricting access to your computer and your account.  If you are an administrative user for our Client, you are solely responsible for determining and assigning access levels and authority to the Services to your employees, who are the only authorized end users of the PALS System and PALS Enhanced Training Materials, each as described below.  You are responsible for all activities that occur under your access credentials, and we will not be liable for any actions by any other individual that uses your account (including, without limitation, any other authorized users), identity or personal information with or without your consent or knowledge. You also agree to notify us promptly of any unauthorized use of your account, account information, identity, or personal information, or other breach of security that you become aware of involving or relating to the Site or the Services. In addition, you agree to exit from your account or the Services at the end of each session.

We do not get involved in disputes over who owns an account. You will not request access to or information about an account that is not yours, and you must resolve any account-related disputes directly with the other party. We decide who owns an account based solely on the information available to us with respect to the account, including, without limitation, the contact information on the account and Client Data available in the account.

ACCESS TO SERVICES; PAYMENT

The Services offered through the Site may include the following:

·       access, via the Internet or web-based or native mobile applications, to IO Education’s proprietary hosted online score entry and reporting system (collectively, the “PALS System”) relating to the specific leveled PALS package set forth in the Order, e.g. PALS Pre-K, PALS K-3, PALS 4-8, etc. (each, a “PALS Course”);

 

·       provision of written assessment, curriculum and similar materials or other content made available by us (either in physical or electronic downloadable form) in connection with the specific PALS Course(s) subscribed to by our Client, but excluding PALS Enhanced Training Materials, all as described in the Order;

 

·       provision of certain training and instructional support services to our Client and its authorized users with respect to the PALS Teacher Materials or PALS System, as applicable, as set forth in the Order.  These support services which may include access to enhanced training curriculum, video and audio recordings or live webinars and other content that are made available as part of the “PALS Enhanced Training Materials,”  to the extent the Client has subscribed to the same. We may sometimes refer to the Pals Enhanced Training Materials and PALS Teacher Materials, collectively, as the “PALS Materials.”

 

The subscription fees applicable to our Client’s and its users’ use of the Services (if any) are set forth in the Order. Except as otherwise set forth in the Order, all subscription fees are due and payable within thirty (30) days after the Client’s receipt of an invoice therefor.

In the event any fees attributable to your account become thirty (30) days or more past due, we reserve the right to suspend or terminate your access to the Services (and the applicable Client Order) on not less than ten (10) days’ notice.  Any invoices more than thirty (30) days past due will be subject to a service charge equal to 1.5% of the invoice amount per month, or the maximum amount allowed by law, whichever is less.  All fees are non-refundable, except as otherwise explicitly stated in the applicable Order or these Terms.  The subscription fees for the PALS System are based on usage of the Services, and you agree that we may access and use Client Data as reasonably necessary to determine the fees for the PALS System.

The fees for any renewal of the Services will be set at then-current IO pricing, unless the Order indicates a price commitment for a specified duration, or unless otherwise agreed by the parties at the commencement of the proposed renewal term through the execution of a new Order.

From time to time, we may establish minimum browser system requirements (the “System Requirements”) for the equipment from which the PALS System or PALS Materials should be accessed so that all included functionalities are operational; we will provide you notice of the System Requirements (if any) by posting them on the.  You or Client may be required to purchase software, hardware or services (such as Internet access services) in order to utilize the Services or satisfy the System Requirements, as may be amended by us from time to time.  You and Client shall be solely responsible for all such software, hardware and services.

We may suspend the Services in whole or in part and without notice: (i) if we believe a Client’s or its users’ use of the Services represents a direct or indirect threat to the function or integrity of the Services, our or its service providers’ system or networks, or any third party’s use of the Services; (ii) if reasonably necessary to prevent unauthorized access to client data (including, without limitation, the Client Data); or (iii) to the extent necessary to comply with legal requirements.  If we suspend the Services without notice, we will provide the reason for such suspension, upon your request.  Any suspension of services for the foregoing reasons will apply to the minimum necessary portion of the online portion of the Services and only be in effect for as long as reasonably necessary to address the issues giving rise to the suspension.  We may also, upon such notice as is reasonably practicable under the circumstances, perform scheduled or emergency maintenance (including temporary suspension of the Services as necessary) to maintain or modify the Services or IO Technology. 

TERM

Your account will remain active (and these Terms will remain in effect) from the effective date of your or Client’s Order for the Services until its subscription expires as described in this section or is terminated as described under “Termination”. Except as described under “Termination,” below, Client will not be entitled to receive a refund from us under any circumstances. 

The initial term of a Client subscription for the Services is one year.  You may renew your subscription to the Services for additional successive renewal periods of one year each by providing us with a notice of your election to renew your subscription on or before your scheduled expiration date.  We may provide you (via email or via the Services) with a proposed renewal quote 90 days prior to your scheduled expiration date.  If you do not renew your subscription as described in this paragraph or may otherwise be agreed to between Client and IO Education in writing, your subscription for the Services expires on the expiration date, and we may terminate all associated Client accounts at any time after that date. 

TAXES

We collect and remit sales tax from our customers located in certain state and local jurisdictions, including those jurisdictions where services like the Services are taxable and where we maintain a physical presence. We determine your local taxing jurisdiction based on the billing address that is listed in the Client’s account.

You agree to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on these Terms, use or possession of the Site or the Services or your products or services (except for taxes based on net income payable by us) (collectively, “Taxes”).  All Taxes payable by Client will be charged to Client at the same time as the subscription fees to which the taxes relate are charged to the Client.

If a Client is exempt from any Taxes, it will provide us with a valid tax exemption certificate authorized by the appropriate taxing authority to the extent such an exemption certificate is required or reasonably requested to establish such exemption.

USE OF SITE AND SERVICES

You certify that you take full responsibility for the selection and use of and access to the Site and the Services.  We may change, suspend or discontinue any aspect of the Site or the Services at any time, including the availability of any feature, database or content (including, without limitation, the PALS Materials). We may also impose limits on certain features and services or restrict your access to part, or all, of the Site, without notice or liability.  None of the changes to the Services will materially adversely affect the functionality of the Services.

All of the Site and Services content we make available to use (including, without limitation, the PALS Materials) is subject to copyright, trademark, service mark, trade dress and other intellectual property rights or licenses held by us or our licensors. We grant you a limited license to access and use the Site only to gather information about our programs and services and communicate with us through the Site.

With respect to the Services, and subject to the terms and conditions of this Agreement, we grant to the subscribing client (as set out on the applicable Order), a limited, nontransferable, nonexclusive license for the subscribing Client and its employees as follows (as applicable):

·       During the term of the Client’s subscription (as described on the Order), to access over the Internet and use the PALS System and, if included in your subscription, the PALS Enhanced Training Materials, in each case solely to support the Client’s normal course of business and according to the access authority levels configured or assigned by the Client’s administrative user;

·       To publish any output generated from Client’s or its user’s use of the PALS System, (namely, charts, graphs, tables and reports generated by the PALS System at the Client’s or its users’ direction) in research reports or other publications published or issued in our client’s usual and ordinary course of business to the client’s constituents (whether in paper or electronic form) (each, an “Authorized Publication”);

·       To disseminate those Authorized Publications, provided that (i) “IO Education, LLC,” is credited as the source of the results published therein, and (ii) those Authorized Publications are not distributed or sold or subscribed to for consideration or compensation;

·       During the term of the Client’s subscription, to access, download and reproduce those PALS Teacher Materials described in your Order (subject to any limitations on copies set forth in the Order), if any; and

·       To use those PALS Teacher Materials you receive during the term of the Client’s subscription,  if any, solely to support the Client’s normal course of business.

 

You may not download (other than page caching) any of the Site or the Services, other than as permitted above. You also may not copy, modify, publish, distribute, transfer or create derivative works from any of the Site, the Services or any materials on the Site or Services (including, without limitation, computer programs or other code), except as specifically set out above.

Your license to access and use the Site does not include any resale or commercial use of the Site, the Services or its contents; any collection and use of any service listings, descriptions, or prices; use the Site, the Services or any content available on the Site or Services for the benefit of any third party (other than the Client); or use data mining, robots, or similar data gathering and extraction tools. You may not visit or otherwise exploit any portion of the Site or Services for any commercial purpose other than your internal purposes without our written consent. You may not frame or utilize framing techniques to enclose any proprietary information (including images, text, page layout, or form) of the Site or Services without our written consent. You may not use any metatags or any other "hidden text" utilizing the name, domain name or trademarks of IO Education without our express written consent. Any unauthorized use terminates the permission or license granted by us. 

From time to time, we may make enhancements or customizations to the Services. Any intellectual property created in the course of performing the Services, whether by us alone or jointly with any Client, shall be and remain the exclusive property of IO Education, and you assign any of your rights, interest or title in or to the same to us.

As a condition of your use of the Site and the Services, you warrant that you will not use the Site of the Services for any purpose that is unlawful or prohibited by these Terms. Without limiting the generality of the foregoing, (1) you may not use the Site or the Services in a manner that could damage, disable, or impair the Site or the Services or interfere with another party's use of the Site or Services; (2) you may not obtain or attempt to obtain any content through any means not intentionally made available through the Site or Services; and (3) you will not upload, post, distribute or otherwise publish through the Site any materials that (i) restrict any other user from using and enjoying the Site, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would give rise to civil liability or otherwise violate any law, (iv) violate or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or other proprietary rights, (v) contain a virus or other harmful component, (vi) contain any information, software or other material of a commercial nature, (vii) contain advertising of any kind, or (viii) contain false or misleading indications of origin or statements of fact. 

SUBMISSIONS GENERALLY

By posting or submitting any materials or any other communication other than Client Data (individually or collectively "Submissions") to or through the Site (e.g. via an email contact form, online forum or resource library, to the extent we make such features available), you grant us and our affiliated companies and necessary sub-licensees a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit such Submissions, in all media now known or hereafter developed, unless otherwise prohibited by the terms of these Terms or any applicable federal, state or local law or regulation. You waive all rights to any claim against us for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with our authorized use of such Submissions. 

By posting or submitting your Submissions, you warrant and represent that you own or control all of the rights to your Submissions, including, without limitation, all the rights necessary for you to provide or submit such Submission. You acknowledge that, by submitting Submissions through the Site, no confidential, fiduciary, contractually implied or other relationship is created between you and us other than pursuant to these Terms or applicable federal, state or local law or regulations. 

The terms of this section do not apply to any Client Data you post or transmit via the Services, which Client Data will be governed by the following paragraph.. We will not use, transmit or distribute any Client Data, except as permitted by that paragraph. 

CLIENT DATA

 

The term "Client Data" means information our Client creates or otherwise owns, licensed by our Client from third parties or otherwise provided to us on our Client’s behalf and, in each case, that is uploaded to or processed or accessed by the Services. With respect to any Client Data provided to us, you and Client: (i) grant IO Education the right to use, copy, modify, manipulate and create derivative works of the Client Data as necessary in order for us to provide and perform the Services; (ii) agree to secure rights in the Client Data necessary for us to provide the Services without violating the rights of any third party, or otherwise obligating us to you, Client or any third party (except as otherwise set out in these Terms).  Except as otherwise required by applicable law, we do not and will not accept any obligations in any separate license or other agreement that may apply to the Client Data or use of the Services. We may transmit or disclose Client Data to third parties in accordance with your and our Client’s directions (whether via the Services or otherwise).

 

We acknowledge that Client Data may include student-related information from Client that contains personally identifiable information about a student, and that such information is protected under the Family Educational Rights and Privacy Act (“FERPA”), and if applicable under corresponding state laws in Client’s state. Our access to any personally identifiable information in the Client Data is authorized solely in connection with our provision of the Services pursuant to these Terms and is governed by IO Education’s Platform Privacy Policy.

 

In the event we are required to respond to any search warrant, court order, subpoena other valid legal order relating to you or the Client Data, or you or Client request material assistance from us in connection with Client’s efforts to conduct any investigation, to cooperate with or respond to any investigation being conducted by a third party, or to pursue or respond to any matter or respond to any legal or administrative proceeding or similar matter, you will reimburse us for any cost that we incurs in so responding or assisting. 

 

TREATMENT OF CLIENT DATA UPON TERMINATION

 

Upon expiration or termination of any Order, you must notify us (which may be via email) within five (5) days of expiration or termination whether to (i) disable all Client accounts relating to the terminated Services and delete the Client Data in such accounts; or (ii) provide you (if you are the administrative user for the Client) with limited access to its account for a period of ninety (90) days after the date of such expiration or termination (the "Retention Period") for the sole purpose of permitting you to retrieve your Client Data, in which case you will reimburse us if there are any applicable costs; provided, however, that the provisions of subsection (ii) will not apply unless you have paid all amounts due to IO through the effective date of termination no later than five (5) days after such date.  If you do not indicate (i) or (ii), we will retain the Client Data in accordance with subsection (ii).  Following the expiration of the Retention Period, we will disable all Client accounts relating to the terminated Services and delete the Client Data contained in those accounts.  You and Client agree that, other than as described in this paragraph and notwithstanding any other term in these Terms, we have no obligation to continue to hold or return any Client Data.  You and Client also agree that we have no liability for deletion of any Client Data pursuant to these Terms.

 

SYSTEM METRICS

 

We may automatically collect usage and volume statistical information regarding your usage of the Services (collectively, the “System Metrics”).  We use the System Metrics internally to diagnose technical problems, administer the Services, and improve our offerings and marketing.  The System Metrics do not include any personal information or data related to the user of the Services.  Notwithstanding any term to the contrary set forth herein, you and Client agree and consent to our collection and use of the System Metrics as set forth herein, and you and Client further agree that the System Metrics are our sole and exclusive property.

 

LINKS TO THIRD PARTY SITES 

The Site may contain links to other websites owned or maintained by third parties ("Linked Sites"). The Linked Sites are not under our control, and we are not responsible for the contents of any Linked Site or any changes or updates to a Linked Site. We do not guarantee the accuracy and completeness of the information obtained through any Linked Site. Accordingly, we will not be liable for decisions made based upon information on the Linked Sites. We are not responsible for web casting or any other transmission received from any Linked Site. We provide these links to you only as a convenience, and the inclusion of any link does not imply endorsement by us of the site or any association with its operators. 

LIMITED WARRANTY

 

We warrant that we will use commercially reasonable efforts to provide the Services to Client, provided that: (i) you and Client have used equipment, settings and software that meet the System Requirements and have not otherwise used any equipment or software that adversely affects the Services; and (ii) Client has paid all amounts due under this Agreement and is not in default of any provision of this Agreement.  YOUR AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY CONTAINED IN THIS SECTION IS REDELIVERY OF THE PALS MATERIALS OR REPERFORMANCE OF THE PALS SERVICES, AS APPLICABLE.  IO Education does not make any guarantee or warranty as to the quality of transmission of data over telephone, digital subscriber lines or any other method of Internet delivery, including, without limitation, server downtimes or other network related problems except as described this section. 

 

LIABILITY DISCLAIMER AND LIMITATION 

EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE UNDER “LIMITD WARRANTY, THE SITE AND THE SERVICES, INFORMATION, SOFTWARE, PRODUCTS, GRAPHICS, DOCUMENTS, PALS MATERIALS, IO TECHNOLOGY AND OTHER ELEMENTS INCLUDED IN OR AVAILABLE THROUGH THE SITE OR SERVICES (COLLECTIVELY, THE “CONTENTS”) ARE PROVIDED EXCLUSIVELY AN "AS IS" BASIS, AND WE DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SITE, SERVICES OR CONTENT, OR, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE.  WE DO NOT WARRANT THAT THE SITE, SERVICES OR CONTENTS WILL BE UNINTERRUPTED OR ERROR-FREE.  WE DO NOT WARRANT OR GUARANTEE ANY SPECIFIC RESULTS FROM YOUR OR CLIENT’S USE OF THE SITE, SERVICES OR CONTENTS.  AS BETWEEN THE PARTIES, YOU AND CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL CLIENT DATA PROVIDED BY YOU OR CLIENT IN CONNECTION WITH THE SITE OR SERVICES.

 

PLEASE INFORM IO EDUCATION OF ANY ERRORS AT support@ioeducation.com.  

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER YOU (OR CLIENT) OR WE BE LIABLE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND, INCLUDING COST OF REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF INFORMATION OR DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

 

IN NO EVENT WILL THE MAXIMUM LIABILITY OF IO EDUCATION OR CLIENT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SITE, THE SERVICES OR ANY OF THE CONTENTS, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO TWELVE (12) MONTHS OF FEES APPLICABLE TO THE AFFECTED SERVICE(S) AT THE TIME OF THE EVENT (IF ANY) OR $100, WHICHEVER IS GREATER. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S OWN FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.  The limitations set forth in this paragraph will not apply to any fees or reimbursable expenses due to IO Education under these Terms.

 

We are not liable or responsible for any delays or failure in performance of any part of the Site or Services due to any cause beyond our control, including, without limitation, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.

 

You agree that IO Education has entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.


TERMINATION

We may suspend the Site at any time, with or without cause, without notice.  Your account for the Services will also be closed if the Client subscription with which your account is associated is terminated as described in this section.

 

In addition to any other termination rights described in these Terms, we may terminate Client’s Services subscription (or, in our sole discretion, suspend the provision of the Services) if Client: (i) breaches these Terms and fail to cure such breach within thirty (30) days of written notice describing such breach, except in the case of failure to pay fees or other amounts due under these Terms, which such breach must be cured within ten (10) days after our notice of such delinquency; or (ii) breaches, or any of its users, breaches any license, restriction on use or confidentiality terms of these Terms. 

 

Client may terminate its subscription to the Services immediately upon written notice to us if we: (i) breach this Agreement and fail to cure such breach within thirty (30) days of written notice describing such breach; or (ii) become the subject of any involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors and such proceeding is not dismissed within sixty (60) days of its filing.

 

Our ability to provide the Services may be subject to various licenses or other agreements (each a "Service Agreement") between us and our third party suppliers.  In the event of the expiration or termination of any applicable Service Agreement, we will use commercially reasonable efforts to obtain alternative suppliers in order to avoid suspension or disruption in the Services.  If we are unable, for any reason, to obtain such an alternative or replacement Service Agreement, or if we reasonably determine that the provision of any Services would be a violation of any applicable law or regulation or any IO  Education license in any jurisdiction or is no longer permitted under any of the same, we may terminate all affected Orders upon written notice to Client without any liability to you or Client.  We will give Client at least sixty (60) days prior written notice to Client (or, if it is not possible to give 60 days notice, as much notice as possible under the circumstances) of the termination or expiration of a Service Agreement governing our ability to deliver the Services, or any other condition arising under such Service Agreement that is likely to adversely affect Client’s use of the Services or our ability to provide the Services. If we terminate any Order pursuant to this section, and Client has prepaid for any Services under that Order, then we will, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Client within forty-five (45) days after the date of termination.

 

PROCEDURE UPON TERMINATION; SURVIVAL

 

Upon the effective date of termination of a Client account, and in addition to any other post-termination obligations in this Agreement, we will cease providing the terminated Services to Client and its users, you will cease using the Services, and all Client’s payment obligations through the effective date of termination will immediately become due.  In addition to the foregoing, promptly upon termination of this Agreement as a whole, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information, except as otherwise expressly set forth in this Agreement or as required (and only to the extent necessary) to comply with any applicable legal, archival or accounting record keeping requirement; provided, however, that all such retained Confidential Information will remain subject to the “Confidentiality” provision of these Terms.

 

The definitions in these Terms and the respective rights and obligations of the parties under the paragraphs titled Submissions, Treatment of Client Data upon Termination, Procedure Upon Termination, Liability Limitations and Disclaimer, System Metrics, Confidential Information and Proprietary Rights,  and General will survive any termination or expiration of this Agreement.


CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS 

 

If you subscribe to the Services, then you and we each acknowledge that you and will will have access to certain non-public and confidential information (collectively, “Confidential Information”) of the other party.  IO Education’s Confidential Information expressly includes information we create or otherwise own or license from third party and related to the Services, including, without limitation, all of our proprietary software and other technology with respect to the Services, all documentation relating to the Services (both printed and electronic), and any derivatives, improvements, enhancements, upgrades and updates of the foregoing conceived, reduced to practice or otherwise developed during the term of this Agreement by either party (collectively, the “IO Technology”), together with any processing, storage and transmission information that may be necessary for us to perform its obligations under this Agreement, but excluding Client Data.  Each of you (for yourself and Client) and IO Education agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party.  Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information.  The obligations of this section will last during and after the term of this Agreement.

 

The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.  If Client is a governmental entity, the terms of this section are subject to the requirements of applicable trade secret, public records and similar laws.  We regard the IO Technology as our trade secret and require that you and Client treat it such with respect to any public records requests with respect to the IO Technology, in accordance with applicable law.

 

The parties expressly agree that the terms of this Agreement will be maintained in confidence and that neither party will disclose the terms of this Agreement to any third party without the prior written approval of the other party.  Notwithstanding anything to the contrary contained in this Agreement, each party will have the right to disclose that Client is IO Education’s customer.

 

Exclusive of Client Data, IO Education and its licensors will retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to the Site, the Services and all legally protectable elements or derivative works of the foregoing, including, without limitation, the IO Technology.  We may place copyright or other proprietary notices, including hypertext links, within the Services, and you may not remove such notices without our written permission.  Notwithstanding anything to the contrary in this Agreement, we will not be prohibited or enjoined at any time by you or Client from utilizing any skills, knowledge or information of a general nature acquired during the course of providing the Site or Services, including, without limitation, knowledge or information publicly known or available or that could reasonably be acquired in similar work performed for another customer of IO Education. 

 

In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of this section, the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.

 

COMPLIANCE WITH LAWS

 

You represent and warrant that your use of the Site and Services will comply with all applicable laws and regulations. In recognition of the global nature of the Internet, you agree to comply with all local rules where you reside or your organization is located regarding online activities and the Site or the Services. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside. The Site and Services are controlled and operated by us from our offices within the United States and we make no representation that the Site or Services is appropriate or available for use in other locations. Those who access the Site or Services from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Site or the Services where prohibited by law.

 

You may not use, remove or export from the United States or allow the export or re-export of the Site, the Services, or any direct product of the Site or Services, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.

 

GENERAL 

Unless otherwise expressly stated herein, these Terms (together with the Other Contract Documents, all of which are incorporated herein by this reference) (i) constitute the entire agreement between you and us with respect to your use of the Site and Services, and (ii) supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.  No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.  No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.  No agency, partnership, joint venture, or employment is created as a result of these Terms, and you do not have any authority of any kind to bind us in any respect whatsoever.  The headings of the sections of these Terms are for convenience only and have no legal or contractual effect. Any notice to you in connection with this Agreement will be effective when we send it to the last email or physical address you gave us (provided, that if the notice pertains to the Site only, and not the Services, such notice may be effective upon posting on the Site), and you also agree that we may provide notice electronically via the Services. Any notice to us will be effective when delivered to us at our physical address,1380 Peachtree Industrial Blvd., Suite 200, Suwanee, GA 30024, or any addresses we later designated in accordance with this paragraph.  Upon account setup of the Services, Client may further designate additional contacts for various types of notices, as defined in the Help Documentation.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS MADE AND PERFORMED THERE WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES; AND (II) YOU AND CLIENT CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE, SUPERIOR AND FEDERAL COURTS HAVING JURISDICTION OVER GWINNETT COUNTY, GEORGIA, IN ALL DISPUTES ARISING OUT OF OR RELATING TO THE USE OF SITE, THE SERVICES OR THESE TERMS, AND YOU WAIVE ANY JURISDICTIONAL, VENUE, OR INCONVENIENT FORUM OBJECTIONS TO SUCH COURTS.  If any part of these Terms is determined to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable provision will be deemed eliminated to the minimum extent necessary and the remainder shall continue in effect. Any cause of action you may have with respect to your use of the Site or Services must be commenced within two (2) years after the claim or cause of action arises, or the date of last payment made by Client, whichever is later. In any action to enforce these Terms, we will be entitled to our costs and attorneys' fees.

 

The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  The Site, the Services and the software used to provide the Site and the Services, including all documentation, are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, and consist of "Commercial Computer Software" and "Commercial Computer Software Documentation." The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users: (1) only as Commercial Items, (2) with the same rights as all other end users, and (3) according to the Terms.  Published and Unpublished rights are reserved under the copyright laws of the United States. Contractor/manufacturer is IO Education, LLC, 1380 Peachtree Industrial Blvd., Suite 200, Suwanee, GA 30024.

 

None of this Agreement, your account or your obligations or rights hereunder may be transferred or assigned by you without our prior written consent, and any attempted assignment, transfer or other disposition by you in violation of this provision will be null, void and of no force and effect.  We may freely assign this Agreement without your consent.  This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto.  There shall be no third party beneficiaries to this Agreement.  Time is of the essence. 

 

HOW TO CONTACT US

 

If you have any questions about these Terms, the Site or the Services, please contact us at support@ioeducation.com.