Waterford Research Institute, LLC (“Waterford“) has developed certain programs, products and technology, as further described and defined below, to provide educational and learning services to educational institutions, programs and individuals. The company or individual identified during registration (“Customer” or “you“) desires to subscribe to the Products (as defined below) and Waterford desires to provide access to the Products on the terms and conditions set forth below.
Waterford is willing to provide access to the Products and Documentation (defined below) to Customer only on the condition that Customer accepts all of the terms in this Subscription Agreement (“Agreement“). You hereby agree that, by clicking “I agree” that you enter into this Agreement on behalf of Customer and that you have the requisite authority to bind Customer to the terms and conditions of this Agreement.
THE PARTIES HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
“Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Customer Data, information derived from or concerning the Products or the Documentation and the terms of this Agreement.
“Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer or its Users through the Products or provided by Customer to Waterford in connection with Customer’s or its Users’ use of and access to the Products.
“Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by Waterford that describe the features, functionality or operation of the Products.
“Effective Date” means the date that Customer has (i) initially placed an order for Products by registering and submitting Order Documents and (ii) clicking “I agree” to accept the terms of this Agreement.
“Fees” means the subscription fees Customer is required to pay for use of the Products as set forth on the applicable Order Documents.
“Order Documents” means, collectively and as applicable: (i) an account registration and subscription order form for the Products duly submitted on-line or in any other manner required by Waterford, in the form provided by Waterford, which shall in all event set forth the Fees, and (ii) such other documents as shall be required by Waterford from time to time in connection with the subscription for the Products. When submitted and accepted by Waterford, all applicable Order Documents of Customer are incorporated into this Agreement by this reference and are part of this Agreement as if fully set forth in this Agreement.
“Products” means the educational products and services of Waterford specified on the Order Form as having been subscribed to by Customer, and which may include any or all of the following separate programs, products and services: (i) Waterford Early Learning a comprehensive, computer-based curriculum composed of Waterford Early Reading Program and Waterford Early Math and Science Program (ii) Classroom Advantage Reading and Classroom Advantage Math & Science computer-based reading, language arts, mathematics and science instructional tools for whole classroom or small group instruction; and (iii) Pre-K Reading a computer-based reading instructional tool designed primarily for pre-kindergarten students.
“Term” means the term of this Agreement as determined in accordance with Section 13(a).
“Users” means Customer’s clients, customers and others who are authorized to use the Products through Customer’s subscription to the Products and have been supplied UserIDs (as defined below) and passwords for this purpose.
The Order Documents will specify the Products that Customer is subscribing for and the related number of Users and any consulting, configuration, customization or other professional services (“Professional Services“), if any, being purchased. Following Waterford’s acceptance of each Order Document and Customer’s payment of any initial Fees due under such Order Documents, Waterford will make the Products available to Customer and its Users for access using a password protected account on Waterford’s designated website.
Subject to the terms of this Agreement, including without limitation the payment of Fees as set forth in Section 10, Waterford hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Waterford Products by Customer and/or the number of Users specified in the Order Documents solely for Customer’s provision of education and learning services and the instruction of its Users. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any statement or representation made by Waterford with respect to future functionality or features of the Products.
Access to the Products cannot be shared with anyone other than Users as authorized in the Order Documents. If Customer desires to add Users to the same subscription in excess of the number originally purchased (“Additional Users“) or if Customer desires to order additional or upgraded services or modules from Waterford (“Additional Services“), Customer must submit an updated Order Document. Upon Waterford’s acceptance of such an updated Order Document, Waterford shall make the Products available to the Additional Users or make the Additional Services available to Customer on the terms and conditions set forth in this Agreement and the updated Order Document. With respect to Additional Users: (i) the term will be coterminous with the preexisting subscription Term; and (ii) Customer will be responsible for any additional Fees for the Additional Users in full for the month in which the updated Order Document is accepted by Waterford.
Subject to the terms of this Agreement, including, without limitation, the payment of the Fees as set forth in Section10, Waterford shall use commercially reasonable efforts to make the Products available in accordance with the terms and conditions of this Agreement, including the applicable Order Documents.
Each User must maintain a unique user identification name and password (“UserID“) for access to and use of the Products. Customer shall be responsible for ensuring the security and confidentiality of UserIDs of its Users. UserIDs may not be provided to any individual who is not a User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notify Waterford promptly of any such unauthorized use. Customer will not use its access to the Products to: (a) harvest, collect, gather or assemble information or data regarding other Waterford customers without their consent; (b) access or copy any data or information of other Waterford customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Products or the data contained therein; or (d) harass or interfere with another Waterford customer’s use and enjoyment of the Products. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Products.
Except to the extent specified in an Order Document, Customer shall be solely responsible to provide or maintain any hardware or other software required for Customer to use the Products. Waterford shall have no liability, obligation or responsibility for the maintenance of Customer’s hardware or other software required for Customer to use the Products, and disclaims any such responsibility.
Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Waterford may take remedial action if Customer or the Customer Data violates this Section 8, however, Waterford is under no obligation to review Customer Data for accuracy or potential liability. Waterford reserves the right to collect and retain Customer Data from which all personally identifiable information included in such data has been removed (“De-Identified Data“). Waterford may use and disclose De-Identified Data for any lawful purpose, including without limitation benchmarking, development or best practices, product and service development, and research and statistical purposes without reimbursement or notification to, or consent or authorization from, Customer. If Customer is an educational entity or institution, Customer agrees, to the fullest extent permissible under applicable law, that Waterford may, to the fullest extent permissible under applicable law, use and retain personally identifiable information included in such Customer’s Customer Data for research projects conducted in conjunction with such Customer, provided that at the conclusion of such research project, such Customer Data will be de-identified or removed at Waterford’s discretion, and in no event will personally identifiable information be disclosed to third parties. Waterford will use commercially reasonable efforts to safeguard the security, confidentiality and integrity of Customer Data.
Customer is responsible for all use of the Products by Customer or its Users. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Products; (b) interfere in any manner with the operation of the Products, or the hardware and network used to operate the Products; (c) distribute, transfer, grant sublicenses to, or otherwise make available the Products (or any portion thereof) to third parties (other than authorized Users), including, but not limited to, making Products (or any portion thereof) available (i) through resellers or other distributors, (ii) as an application service provider, service bureau, or rental source, (iii) by broadcast or transmission by telephone, cable, satellite, the Internet or interactive television; (d) embed or incorporate in any manner the Products (or any element thereof) into other applications of Customer or third parties; (e) create modifications to or derivative works of the Products; (f) reproduce the Products; (g) attempt or permit any third party to attempt to modify, alter, or circumvent the license or access control and protection mechanisms within the Products; (h) use or transmit the Products in violation of any applicable law, rule or regulation, including any export/import laws, (i) in any way access, use, or copy any portion of the Products or Waterford’s code included therein (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Products or (j) remove, obscure or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink or other designation of Waterford displayed on any display screen within the Products (“Waterford Marks“). Customer shall not permit any third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions.
As consideration for the subscription to the Products and the support services provided by Waterford under this Agreement, Customer will pay Waterford Fees for the number of Users and the Products ordered by Customer, which Fees shall be as set forth on the applicable Order Document. Customer understands and agrees that it is ordering the Products for the term of this Agreement; provided, however, that Fees will be charged on a monthly basis for each month of the term. Unless otherwise agreed to in writing by the parties, Customer will pay to Waterford all undisputed Fees owed within 30 days after Waterford’s issuance of an invoice for such amounts. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States. Customer shall reimburse Waterford for all expenses (including reasonable attorneys’ fees) incurred by Waterford to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Waterford’s net income.
If any amount owing by Customer under this Agreement is 15 or more days overdue, Waterford may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations so that all such obligations throughout the remainder of the term become immediately due and payable, and suspend Customer’s access to the Products and suspend all UserIDs until such amounts are paid in full, provided that Waterford will give Customer at least 5 days’ prior notice that Customer’s account is overdue before suspending access to the Products. All past due amounts shall accrue interest at the rate of 1.5% per month until paid in full.
Waterford makes no warranty concerning the Products. ACCORDINGLY, THE PRODUCTS AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY WATERFORD ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WATERFORD MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ACCURACY, EFFICACY AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. ANY STATEMENTS OR REPRESENTATIONS MADE BY ANY OTHER PERSON OR ENTITY ARE VOID. YOU ASSUME ALL RISK AS TO THE QUALITY, FUNCTION, PERFORMANCE, AND ACCURACY OF THE PRODUCTS. WATERFORD DOES NOT WARRANT THAT THE PRODUCTS WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
WATERFORD’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT) OR THE PRODUCTS, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO WATERFORD BY CUSTOMER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER’S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST WATERFORD WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL WATERFORD BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE PRODUCTS, EVEN IF WATERFORD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
