Achieve3000® TERMS OF SERVICE The following Terms of Service ("TOS") are incorporated by reference into the order or contract under which you, a school district, public or private school or other entity ("You"), have agreed to purchase the right to permit your students, parents, teachers and school administrators ("Authorized Users") to access and utilize one or more educational services provided by Achieve3000 (each such service, "Service", and Achieve3000, "Us" or "We"). In the event of a conflict between the order or contract under which You have agreed to make your purchase and these TOS, the conflicting term(s) of these TOS shall prevail, unless You and We expressly state in a subsequent written document that You and We intend that the conflicting terms of that document prevail over the conflicting terms of these TOS. 1. CONTENT OF YOUR PURCHASE AGREEMENT The agreement under which You are purchasing the right to permit your Authorized Users to access and utilize particular Services ("this Agreement") consists of (a) the written order or purchase agreement in which the specific Service(s) to be provided (including related professional development training), the school(s) to whom the Services are to be provided, the period during which the Authorized Users shall have the right to access and utilize the identified Service(s), pricing, invoicing schedule and other implementation-specific details and terms are specified ("Your Written Order or Agreement"), (b) these TOS, and (c) the Achieve3000 Privacy Policy, which is set forth at www.achieve3000.com/privacy. The foregoing items (a) through (c) contain the parties' entire agreement and understanding regarding our provision of the specified Service(s) to You and your Authorized Users, and supersede all prior oral and written agreements between You and Us regarding the subject of this Agreement, if any. In the event that any of terms set forth in items (a) through (c) are held invalid, illegal or unenforceable, all of the remaining terms set forth in items (a) through (c) will remain in effect. Achieve3000 reserves the right to amend, remove or add to these TOS at any time. Please check this page periodically for any modifications. Your continued use of Services provided by Achieve3000 shall signify your acceptance of the then-current TOS. 2. TERM OF THIS AGREEMENT Except as provided in the following sentence and unless stated otherwise in Your Written Order or Agreement, this Agreement shall commence on August 1 of the year in which You execute Your Written Order or Agreement and conclude on June 30 of the following year (such period, "the Term"). The previous sentence notwithstanding, (a) when You execute Your Written Order or Agreement subsequent to August 1, the Term shall commence on such date and conclude on June 30 of the following year, and (b) the Term of all multi-school year agreements shall be as indicated in Your Written Order or Agreement. 3. DESCRIPTION OF SERVICES The elements of each Service purchased hereunder (each a "Service Element"), and the date on which the appropriate Authorized Users may access and utilize each element are as follows:
4. LICENSE GRANT Effective as of the Service Element Activation Date applicable to each Service Element, your appropriate Authorized Users are granted a limited, non-transferable, non-sub-licensable, non-exclusive, personal, revocable in the event of breach license to access and utilize the Service Elements of each Service that You have purchased the right to access and utilize, solely for educational purposes during the Term. The term “appropriate” here means that Service Elements intended for use by students may be accessed and utilized by any Authorized User, and that Service Elements intended for use by teachers and school administrators may only be accessed and used by individuals functioning in those roles. The foregoing notwithstanding, We will not be obligated to provide any Service to any user who has not (i) agreed to our privacy policy and (ii) agreed to comply with our end user terms of use. We reserve the right to change our privacy policy and end user terms of use at any time without prior notice. 5. RESERVATION OF RIGHTS; RESTRICTIONS ON USE; CONTENT DISCLAIMER Every aspect of each Service, including its underlying concepts, methodologies, processes, formats, specifications, other know-how, site layout, design, images, programs, text, forms and other information (collectively its “Content”), is solely our property and the property of our licensors. You receive no rights to or interest in any Content other than the rights conferred upon You by Section 4. All Content is protected by copyright and other intellectual property laws, and nothing herein grants You any ownership interest in any Content or any right with respect to any Content other than those rights expressly granted in Section 4.
Achieve3000 shall have the right, but not the obligation, to remove any Content at any time. 6. CONTRIBUTIONS During the Term, You, through your employees and agents, may contribute certain ideas, comments, criticisms, and suggestions for improvements, modifications, and other changes to the Services (including with respect to their content) (collectively, "Contributions"). You agree that We may use, modify, and incorporate these Contributions as We see fit. Upon our acceptance of a Contribution, You and We shall be considered joint owners of the Contribution, such that either may use, modify, and exploit the Contribution without obligation to the other.7.PAYMENT TERMS Unless You and We agree otherwise in Your Written Order or Agreement, We may invoice You for Services and other items purchased hereunder in the case of one year agreements, on the day that you execute Your Written Order or Agreement, and in the case of multiple year agreements, on the day that you execute Your Written Order or Agreement and each anniversary thereof. Payment of the undisputed amounts set forth on each invoice shall be due within 30 days of the date of the invoice. Should You dispute any portion of an Invoice, You will communicate to Us in writing the basis of your belief that a portion of the invoice is incorrect no later than the date on which the invoice is to be paid in full, and shall engage with Us in good faith to resolve such dispute as expeditiously as reasonably possible. In the event that timely payment is not received, We shall have the right to deny You and Your Authorized Users access to the Services until payment in full is received. 8.OUR GUARANTEE We will refund all payments received on a prorated basis for any Service provided hereunder other than fees received for Professional Development training, waive our right to future payment and consider this Agreement revoked if, after You have provided Us the data described in Section 9 and the teacher of each class of students utilizing the Service(s) has completed the preparation described in Section 10, the Service(s) is/are not accessible and useable by all of Your Authorized Users for extended periods of time. 9. STUDENT DATA In order to enable Us to provide the Services, You shall provide Us the following data in electronic form (in .CSV comma separated values or .XLS Excel format) regarding each student who will utilize each Service: name of the student’s school, student ID number, student first name, student last name and student grade level. Alternatively, you can upload the data yourself. Visit our Learning Center at www.achieve3000.com/learningcenter for secure data upload instructions. At your request We will also accept, and include in our reports to teachers and administrators, the following additional student data: class code or room number, race/ethnicity, socioeconomic status, disability, and other information. We will only use Student Data in a manner that complies with our Privacy Policy (which is set forth at www.achieve3000.com/privacy). You will treat our staff as authorized school recipients of education records under the Family Educational Rights and Privacy Act (FERPA). 10. TEACHER AND ADMINISTRATOR PREPARATION You will require the teacher of each class of students utilizing any Service to be familiar with its use before the teacher permits students, parents and administrators to access and utilize the Services. Implementation planning and initial training Professional Development sessions for your teachers and school administrators must be completed no later than sixty (60) days after the Subscription Start Date. All subsequent Professional Development sessions purchased hereunder must be completed before the end of the period indicated in Your Written Order or Agreement, failing which your right to have Us provide any such session(s) shall not roll over to a subsequent period and You will not be entitled to a refund. All Professional Development sessions not scheduled within the appropriate time frame as described in this paragraph shall be treated as having been provided by Us. Confirmed Professional Development sessions may be postponed and rescheduled without charge only upon 48 hours prior notice. Professional Development sessions canceled or postponed on less than 48 hours notice shall be treated as having been provided by Us. 11. INVALID LEVELSET® ASSESSMENTS All invalid LevelSet assessments are excluded from reports and portfolios. 12. EMAIL COMMUNICATIONS You hereby authorize Us to send electronic mail to your teachers and school administrators for the purposes of:
If You do not want your teachers and/or school administrators to receive such emails, please notify Us at support@achieve3000.com. 13. SERVICE RELIABILITY We seek to have our Services available twenty-four (24) hours a day, seven (7) days a week, and to maintain all saved information. However, technical failures, acts of God and routine maintenance may render our Service unavailable at times, and/or may result in the loss of information. We shall not be liable to You or anyone else for any loss of information or for the non-availability of any Service, unless such loss of information or non-availability of a Service has resulted from our gross negligence. 14. USER CONDUCT You agree that our End User Terms of Use set forth at www.achieve3000.com/terms/use are reasonable and appropriate, and shall undertake reasonable measures to assist Us in enforcing those terms of use. Derogatory, harmful or unlawful conduct is not permitted on any Services. Your Authorized Users are not permitted to upload, distribute through, or otherwise publish any content which is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal or otherwise objectionable that would constitute or encourage a criminal offense, violate the rights of any party or otherwise violate any law. 15. TERMINATION
16. CHANGES TO SERVICES We are constantly innovating in order to provide the best possible instructional solutions to for our customers’ Authorized Users. You acknowledge and agree that the form and nature of the Services may change from time to time without prior notice to You. You further acknowledge that We may stop (permanently or temporarily) providing any features or may add new features within any Service at our sole discretion without prior notice to You. 17. LINKS TO OTHER SITES Our Services may contain hyperlinks to other sites or resources that are provided solely for the convenience and information of your Authorized Users. We are not responsible for the availability of external sites or resources linked, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. We make no representations as to the quality, suitability, functionality or legality of any sites to which links may be provided. Accordingly, You should review the terms and conditions and privacy policies of each linked site as its policies may differ from ours. If your Authorized Users decide to access linked third-party content and sites, they do so at their own risk. 18. CONFIDENTIALITY Each party agrees to secure and protect the Confidential Information of the other in a manner consistent with the maintenance of the other party's rights therein, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential information of a similar nature, but in no event less than reasonable efforts. Each party agrees to hold the Confidential Information of the other party in confidence, not to disclose it to others or use it in any way, commercially or otherwise, except as authorized in writing by Client or in performance of its obligations under this Order. Notwithstanding Achieve3000’s Privacy Policy, Confidential Information of a party shall not include information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through a source other than the receiving party; (ii) was rightfully known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; (iv) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party; or (v) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the party subject to same shall provide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy. 19. WARRANTIES AND DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
20. GENERAL Nothing in this Agreement shall cause the relationship between You and Us to be anything other than that of independent contractors. None of your and our actions under this Agreement shall be joint, and You and We have not formed, and shall not form, a joint venture to perform either of our obligations hereunder. The failure of either party to require performance of any part of this TOS shall not be deemed a waiver of any present or future right. Modifications of this Agreement shall be binding only if in writing and signed by an authorized representative of both You and Us. The rights and obligations of each party established herein are intended for the sole use and benefit of each of the parties and no one else. Accordingly, this TOS confers no rights upon any third party. Except for payment obligations, neither party shall be responsible for any delay or failure in performance to the extent such delay or failure is caused by causes beyond a Party's reasonable control. You may not assign this Agreement without our prior written consent, and any attempted assignment of this Agreement without such consent shall be null and void. We may assign this Agreement to any entity that purchases all or substantially all of our assets or that obtains control of Us by purchase, merger or other means. All notices, including notices of address changes, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by registered or certified mail, postage prepaid to You at the address set forth in Your Written Order or Agreement, and to Us at Achieve3000, Inc., 1091 River Avenue, Lakewood, New Jersey 08701, Attn: Chief Executive Officer, or to You or Us at such other address as You or We may designate in writing from time to time. The following Sections shall survive the termination or expiration of this Agreement: 1, 5 - 7, 15(b) and 18 - 20. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New Jersey, USA, without regard to its principles of conflict of laws. Achieve3000 and Client each agree that sole and exclusive jurisdiction and venue for any action or litigation relating to this TOS shall reside with a federal or state court located in the State of New Jersey. 21. OUR CONTACT INFORMATION Achieve3000, Inc. |