Effective: May 25, 2018.
Terms of Service
These Terms of Service (“Terms”), together with the Online Order Form and Acceptable Usage Policy, govern the provision of Edulence® services and Client’s use of said services as set forth in the respective Online Order Form (collectively, “Services”).
As used in these Terms of Service, “Agreement” means, collectively, (1) these Terms of Service, together with (2) the Acceptable Usage Policy and (3) Online Order Form. If a conflict exists between these Terms of Service and the Online Order Form, the terms of the respective Order Form and/or the mutually agreed upon Schedules will take precedence.
Client and Edulence agree to the Terms of Service as follows:
- The services shall consist of KnowledgeLink (“KL”) application access, including the necessary multimedia hosting and distribution services as detailed in the Order Form (collectively, “Services”) providing content management and distribution services through client-designated site. The Services, these Terms, Acceptable Usage Policy and any Service Level Agreement schedules provided shall be defined collectively as the “Agreement”. After acceptance of your order, Edulence shall invoice Client for all requested setup or integration fees. Thereafter, Edulence shall invoice Client monthly for the Knowledgelink subscription fees as indicated in the Order Form. Client shall pay all undisputed invoices within 30 days of its receipt of same. Any outstanding invoice over 60 days are subject to a 1% interest fee on the total balance. Any Client with an outstanding invoice more than 90 days is subject to a service interruption. Sufficient measures will be taken to resolve all outstanding balances in order to avoid a Client service interruption.
- The Agreement shall commence as of the Effective Date and remain in effect for the Term stated in Section 3.0, of the approved Statement of Work. Agreement will automatically renew at the end of the term.
Client may cancel the Agreement at the end of the term, for any reason, with written notice to Edulence, sixty (60) days’ prior to the renewal date. Client shall be obligated to pay for all Services provided by Edulence to Client to such date of termination.
- Client’s use of the Services is governed by the attached Edulence “Acceptable Usage Policy” (“AUP”). Edulence may at its sole discretion change, update and revise the AUP. Notice of change will be sent to the primary email address contacts in Edulence’s Client database. Edulence may terminate or suspend this Agreement at any time in the event that Client should breach any provision of the AUP, as further provided therein.
- Edulence shall indemnify, defend, and hold harmless Client and its directors, officers, employees, agents, successors and assigns from and against any and all suits, actions, proceedings, claims, liabilities, losses, damages, judgments, costs, penalties and expenses (including, without limitation, their reasonable attorneys’ fees) (collectively, “Losses”) arising out of or in connection with: (a) a third party claim that Services and/or any portion of them violates or infringes upon any patent, copyright trade secret or other proprietary rights of any third party; and (b) Edulence’s gross negligence and/or willful misconduct.Client shall indemnify, defend, and hold harmless Edulence and its directors, officers, employees, agents, successors and assigns from and against any and all Losses arising out of or in connection with: (a) a third party claim that Client’s unauthorized use of the Services and/or any portion of them violates or infringes upon any patent, copyright trade secret or other proprietary rights of any third party (and such claim(s) would not have occurred but for such unauthorized use); (b) Client’s gross negligence and/or willful misconduct, and (c) Client’s breach of any of the provisions of the AUP or the Agreement.Either party seeking indemnification (“Indemnified Party”) shall provide the other party (“Indemnifying Party”) with prompt written notice of any claim or claims for indemnification hereunder, and the Indemnifying Party shall have the right to control and direct the investigation and defense thereof and related settlement negotiations. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with the foregoing. The Indemnified Party may, at its sole option and at its own expense, participate in the claim or action with its own separate legal counsel, in which event the cost of such participation (including the cost of such separate legal counsel) shall be borne by the Indemnified Party. The exercise by an Indemnified Party of its option to participate in the claim or action and/or to select its own separate legal counsel shall in no way limit or modify the Indemnifying Party’s obligations set forth above in this Section 4. This Section shall survive the termination or expiration of this Agreement and stay in effect for 6 years.
- Neither party to this Agreement shall be liable to the other party for consequential, incidental, punitive, special or indirect damages (including, but not limited to, lost profits, lost wages or lost savings) arising from, relating to, or in connection with this Agreement, even if such party has been advised of the possibility of or could have foreseen such damages, and each party’s aggregate liability hereunder shall in no event exceed the total fees paid by Client to Edulence hereunder. In no event shall the liability of either party to the other for claims arising out of this Agreement exceed the fees paid to Edulence by Client hereunder. This limitation of liability applies regardless of the form of action, whether in contract, tort, or otherwise. Notwithstanding the foregoing, the limitations of liability set forth above in this section shall not apply to losses against which each party has agreed to indemnify the other under Section 4 hereof.
- All Confidential Information furnished by either party to the other pursuant to this Agreement shall be held strictly confidential shall only be used in connection with the provision of the Services and shall be protected from disclosure both during and after the term of this Agreement. The parties agree that all Confidential Information supplied by the other party, in whatever form, shall remain proprietary information of and property of the disclosing party. “Confidential Information” means all information disclosed by one party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) all Client content uploaded, transmitted to or from, or stored on, the Knowledgelink private portal and public website, (ii) all Edulence, Knowledgelink and WordPress architecture, proprietary information and technology, including source code, object code and documentation, and (iii) any other information that is marked or otherwise conspicuously designated as confidential. Information that is independently developed by a party without reference to the other’s Confidential Information, or that becomes available to a party other than through breach of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
- Edulence agrees not to use the name, trademark, logo, and/or service mark of Client and/or any of its subsidiaries without the prior written consent of Client in each instance. The Agreement is governed by the laws of the State of New York (without regard to principles of conflicts of laws). The Agreement between the parties hereto contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, understandings, documents, negotiations, and/or discussions (whether oral or written) between the parties. Except as provided herein, no supplement, amendment, or modification to this Agreement shall be valid, enforceable, or binding upon the parties unless made in writing and signed by an authorized representative of both parties.
- Any provision of or obligation under the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any such termination or expiration for 10 years, and shall continue in full force and effect. In addition, all provisions of this Agreement shall survive the termination or expiration of this Agreement to the fullest extent necessary to give the parties the full benefit of the bargain expressed herein and of the intent contemplated hereunder.
- All notices in connection with this Agreement shall be in writing and personally delivered, delivered via overnight mail with written receipt, or sent by certified mail, return receipt requested, (i) if to Client, at its address set forth above, (ii) if to Edulence, at 79 Madison Avenue, 2nd Floor, New York, NY 10016, with a copy to Kupfer & Associates PLLC, 5 Columbus Circle, Suite 800, New York, NY 10019, or (iii) to such other address as either may hereafter designate in writing in accordance with this Section. Any such notice shall be effective upon personal or overnight delivery or five (5) days after certified mailing.
Acceptable Usage Policy
Client agrees when using, or accessing Edulence’s servers and services that the following terms and conditions of this policy will be met:
Web, FTP, Publishing Content Policies
Edulence does not allow any of the following content, or links to such content, to be published using its servers or services:
(a) Content of a pornographic, sexually explicit, or violent nature.
(b) Content of an illegal nature (including stolen copyrighted material, warez or hacked software, serial numbers, or mail fraud).
(c) Pirated software sites.
Clients posting any of the above content on their sites will be notified using Client’s current email address on file, and given a 48-hour grace period to make any corrective actions. If no corrective actions are taken, Edulence will suspend the services of the account until a resolution is met between Edulence and Client. A repeated violation of this Policy may result in immediate cancellation of service without refund of any fees.
Client is not permitted to knowingly allow another website, or hosting server, to internally link to content files stored on Edulence servers. Client may not use hosting account as a remote storage server, with the exception of content intended for online education.
Email Usage Policies
Edulence does not support unsolicited email messages sent by Clients of our services or system (also known as junk email or SPAM). Clients sending unsolicited email messages from our system provided ESP, will have all of their services suspended immediately without refund of any fees.
Clients found using our services or system for illegal activities, including but not limited to breaking into remote systems, credit card fraud, theft, vandalism, threats, or violence, will have their accounts immediately canceled without refund of any fees.
Edulence respects the rights of copyright holders and publishers and requires all users to confirm they own the copyright or have permission from the copyright holder to upload content. We comply with the Digital Millennium Copyright Act (DMCA) and will promptly remove content when properly notified. Repeat infringers’ accounts will be terminated immediately and all uploaded media disposed of permanently.
An Edulence and/or Client site may contain links to third party websites that are not owned or controlled by Edulence and/or Client. Edulence and/or Client has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Edulence and/or Client will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly relieve Edulence and/or Client from any and all liability arising from your use of any third-party website.