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”) and (b) these TOS. Your Written Order or Agreement and these TOS contain the 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 the terms set forth in this Agreement are held invalid, illegal or unenforceable, all of the remaining terms of this Agreement 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 (the “Subscription Start Date”), and shall conclude on June 30 of the following year (the “Subscription End Date”, and such period between the Subscription Start Date and Subscription End Date constituting “the Term”). The previous sentence notwithstanding, (a) when You execute Your Written Order or Agreement subsequent to August 1, the Subscription Start Date shall be and the Term shall commence on such date and conclude on June 30 of the following year, and (b) the Subscription End Date and 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:
Date on Which the Appropriate Authorized User May First Access and Utilize This Service Element (the “Service Element Activation Date”)
The specified subscription Service(s) to the KidBiz3000®, TeenBiz3000®, Empower3000®, Coach3000®, Smarty Ants®, eScience3000®, and Spark3000® service, including Student, Teacher and Home edition, and standards alignment services.
Thirty (30) days before the Subscription Start Date (or as of the actual order date, if the order date is less than thirty (30) days before the Subscription Start Date)
LevelSet® Placement Test, an online assessment which measures students’ reading abilities for accurate placement in the content.
Subscription Start Date
Interim Test, an online assessment which refines the data about students’ reading abilities partway through the implementation period.
Post Test, a final assessment of students’ reading levels at the culmination of the program.
Sixty (60) days prior to the Subscription End Date
Email3000® email service.
Subscription Start Date
Online Professional Development materials for educators delivering differentiated reading instruction.
Subscription Start Date
On-Site Professional Development sessions.
As indicated in this Agreement
Online Professional Development sessions.
As indicated in this Agreement
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 license (revocable in the event of breach) to access and utilize the applicable Service Element that You have purchased the right to access and utilize, solely for educational purposes and solely as permitted by this Agreement, 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 Authorized Users functioning in those roles.
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 of these TOS. 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 of these TOS.
- You and your Authorized Users may not permit any third party whom We have not provided a user ID and password to access or utilize any Service.
- You and your Authorized Users may not copy, modify, translate, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code of any software used to provide any Service or permit any other party to do so. Content may not be merged with any other service or software, or be adapted or modified in any way, by anyone.
- You and your Authorized Users may not a) copy, reproduce, publish, distribute, modify, transfer or in any way commercially exploit any part of the Content, b) mirror the Content on any other server, c) create any derivative works, c) attempt to avoid, circumvent, or disable any security device, procedure, protocol, or mechanism that may be established with respect to the Content or d) delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed on or in the Content.
- You and your Authorized Users may not engage in systematic retrieval of Content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory of any kind without our written permission. You may not use any robots, spiders, crawlers or other automated downloading programs or devices to search any Content, harvest personal information, or cause disruption to the Service.
- You and your Authorized Users may print or download Content for your own personal educational use, provided You keep intact all copyright and other proprietary notices.
Achieve3000 shall have the right, but not the obligation, to remove any Content at any time.
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 associated 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 thirty (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. TAXES AND TAX RELATED OBLIGATIONS
The rates and charges for Services do not include and You acknowledge that You are responsible for any sales, use, excise, gross receipts, personal property, privilege, and value added tax liabilities and any other duties or other transaction taxes or charges imposed by any governmental entity for products and Services provided under this Agreement, excluding only taxes based solely on our net income. You shall hold Us harmless from all claims and liabilities arising from the failure to pay any such taxes, including penalties, interest, duties, tariffs or charges. You will promptly reimburse Us for any and all taxes, assessment, permits and fees that We may be required to pay in connection with this Agreement or its performance.
You acknowledge that contemporaneous documentation (e.g., exemption certificate, etc.) is critical to insure that appropriate tax treatment is afforded and You agree to provide Us with the required documentation in a timely manner.
9. 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 10 and have certified that the teacher of each class of students utilizing the Service(s) has completed the preparation described in Section 11, the Service(s) is/are not accessible and useable for extended periods of time by all of your Authorized Users.
10. STUDENT DATA
In order to enable Us to provide the Services to You and your Authorized Users, You shall provide Us the following data in electronic form (in .CSV (comma separated values) or .XLS (Excel) format) regarding each student whom You want to enable to use a Service: name of the student’s school, student ID number, student first name, student last name and student grade level (collectively, “Student Data”). Alternatively, you can upload the data yourself. Visit our Learning Center at www.launch.achieve3000.com for secure data upload instructions.
At your request We will also accept, include in our reports to teachers and administrators, and treat as Student Data the following additional information: class code or room number, student race/ethnicity, student socioeconomic status, student disability, and such other information that you may request and that we can feasibly track in the course of delivering applicable Services.
In addition, we do and will comply with the provisions of the Children’s Online Privacy Protection Act (“COPPA”) in the operation of the Achieve3000 website through which your Authorized Users will access and use Services.
11. TEACHER AND ADMINISTRATOR PREPARATION
You will require the teacher of each class of students utilizing a Service to be familiar with its use before the teacher permits students, parents, and administrators to access and utilize the Service.
Implementation planning and initial training Professional Development sessions, whether online or on-site, must be completed no later than sixty (60) days after the Subscription Start Date. All subsequent Professional Development sessions purchased hereunder, whether online or on-site, must be completed before the end of the period indicated in Your Written Order or Agreement. Such session(s) shall not “roll over” to a subsequent period and You will not be entitled to a refund for such unused sessions. All Professional Development sessions, whether online or on-site, not scheduled by You 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 forty-eight (48) hours’ prior notice. Professional Development sessions canceled or postponed on less than forty-eight (48) hours’ prior notice shall be treated as having been provided by Us.
12. INVALID LEVELSET ASSESSMENTS
All invalid LevelSet assessments are excluded from reports and portfolios.
13. EMAIL COMMUNICATIONS
You hereby authorize Us to send electronic mail to your teachers and school administrators for the following purposes:
- delivering Professional Development and similar materials to your teachers and administrators; and
- advising You of changes or additions to our Services or about any of our Services.
If You do not want your teachers and/or school administrators to receive such emails, please notify Us at email@example.com.
14. SERVICE RELIABILITY
Subject to our need to perform periodic and routine maintenance, we take reasonable measures to make our Services available 24 hours a day, seven days a week and to maintain saved information. However, technical failures, acts of God and routine and unscheduled maintenance may render one or more Services unavailable at times (including during normal business or school hours), 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.
15. USER CONDUCT
- You or We may terminate this Agreement immediately for default if the other party fails to cure all material defaults in its performance within ten (10) days of its receipt of written notice of its default(s) from the terminating party.
- Immediately upon the termination or expiration of any of Your Written Order or Agreement You and Your Authorized Users shall immediately cease use of all Service(s) purchased under that Written Order or Agreement. Should any Written Order or Agreement be terminated prior to its natural expiration, You shall pay Us all amounts owed for Services provided to You and Your Authorized Users under that Written Order or Agreement up to the effective date of such termination.
17. CHANGES TO SERVICES
We are constantly innovating in order to provide the best possible instructional solutions to 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.
18. 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, or policies employed by, 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.
“Confidential Information” shall mean any and all non-public proprietary business, technical, and operational information disclosed by one party to the Agreement to the other party, including by or through its respective employee, agent, contractor, or representative, during the Term of this Agreement or in connection with correspondence or negotiations culminating in this Agreement, provided such information is clearly marked as “proprietary” or “confidential” or is of such nature that a person would reasonably understand the information to be of a confidential or proprietary nature. The terms of Your Written Order or Agreement which are unique to You shall be deemed to be Confidential Information of each of us.
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 the disclosing party or in performance of its obligations under this Agreement.
20. DATA OWNERSHIP AND LOCATION OF SERVICES
You will own data on your Authorized Users’ use of our Services (“Program Data”) and the Student Data You provide to us. At your request, at the end of the Term of this Agreement or if and when You otherwise require, We will return or destroy in a verifiable manner Student Data in our possession and provide You with copies of associated Program Data We have not previously provided to You. To comply with applicable laws, we reserve the right to destroy or otherwise dispose of Student Data and Program Data you have not directed us to return or destroy following this Agreement’s Term. You agree that we may use Student Data and Program Data to provide the Services, and that we may use Program Data for our internal purposes, for example, development and assessment of Services and Content.
The Services and Content are provided from, and Student Data and Program Data are stored on, servers located in the United States. You acknowledge and agree that we may provide the Services and Content, and store Program Data and Student Data, in this manner. You further confirm that, as applicable, your transfer of Student Data from outside the United States and our use and processing of such data in connection with delivery of Services to You and Authorized Users are consistent with laws applicable to your transfer and our processing of such data.
21. WARRANTIES AND DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
- We warrant that We have the full authority to grant the rights granted to You herein. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, WE DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO ANY SERVICE PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OR UTILITY OF CONTENT, EFFECTIVENESS OF ANY SERVICE IN IMPROVING ANY STUDENT SKILL OR CAPABILITY, OR NONINFRINGEMENT, AND ANY WARRANTY THAT ANY SERVICE WILL BE AVAILABLE AT ALL TIMES OR WITHOUT INTERRUPTION. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, EACH SERVICE IS PROVIDED “AS IS” AND WITH ALL FAULTS, AND YOU UNDERSTAND THAT YOU ASSUME ALL RISKS OF THE SERVICE’S USE, QUALITY, AND PERFORMANCE.
- IN NO EVENT SHALL EITHER YOU OR WE, INCLUDING EITHER OF OUR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER YOU OR US OR ANY THIRD PARTY, EVEN IF YOU OR WE, AS THE CASE MAY BE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE RESPONSIBLE OR LIABLE FOR ANY INJURY THAT MAY BE ATTRIBUTED TO THE CONTENT OF COMMUNICATIONS TRANSMITTED BY MEANS OF A SERVICE BY ANY PERSON OTHER THAN OUR EMPLOYEES OR AGENTS. OUR TOTAL LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY REASON SHALL BE LIMITED TO DIRECT DAMAGES UP TO THE TOTAL AMOUNT OF FEES YOU PAID DURING THE TERM OF YOUR WRITTEN ORDER OR AGREEMENT. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE AND OTHER TORTS. IN NO EVENT SHALL WE, INCLUDING OUR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND OUR LICENSORS BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY CONTENT OR ANY SERVICE.
- FURTHER, IN NO EVENT SHALL WE, INCLUDING ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR LICENSORS BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SERVICE OR CONTENT PROVIDED HEREUNDER TO YOU OR TO ANY AUTHORIZED USER
- We agree to indemnify and defend You and your employees and agents from and against any action, claim, demand, or liability, including reasonable attorney’s fees and costs, arising from or relating to a claim that a Service provided to You hereunder infringes upon the copyright of a third party. If any such Service is held to infringe, or if in our opinion, such a claim is likely to occur, We may, at our sole option and expense, either: (i) procure for You and your Authorized Users the right to continue using the Service in question; or (ii) replace or modify the infringing Service Elements so that they become non-infringing as long as functionality is not materially and adversely affected. If neither alternative (i) nor (ii) is reasonably available, then We may terminate your license to access and utilize the allegedly the infringing Service and We shall return the portion of your advance payment(s) associated with unconsumed Services. This Section 21(d) states our entire liability and obligation, and your exclusive remedy, for infringement.
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 its 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., 1985 Cedar Bridge Ave, Lakewood NJ 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, 10, 16(b), and 19 – 22.
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. You and We each agree that sole and exclusive jurisdiction and venue for any action or litigation relating to this Agreement shall reside with a federal or state court located in the State of New Jersey.
23. OUR CONTACT INFORMATION
1985 Cedar Bridge Ave
Lakewood, NJ 08701