Aktivate General Terms and Conditions
These Aktivate General Terms and Conditions, together with the Aktivate Privacy Policy and Aktivate’s Terms of Service, are part of the Aktivate License Agreement, which governs Your use of products and services of FamX Inc., dba Aktivate (“Aktivate” or the “Company”). References to “You” or “Customer” refer to the entity executing the Aktivate License Agreement. Capitalized terms not otherwise defined in these Aktivate General Terms and Conditions will have the meanings assigned to them in the Aktivate License Agreement, Terms of Service, or Aktivate Privacy Policy, as applicable.
The specific products and services covered by your license are described on Exhibit A to the Aktivate License Agreement executed by You. By using the Services, You hereby agree to be bound by these Terms and Conditions, the Terms of Service, and Aktivate’s Privacy Policy.
The Company reserves the right to change these Aktivate General Terms and Conditions, the Privacy Policy and the Terms of Service from time to time in its discretion by posting the changes at the respective URLs for the Aktivate General Terms and Conditions, the Privacy Policy, and the Terms of Service. Your continued use of the Services following such changes will indicate your agreement to be bound by such changes or updates.
1. Definitions.
As used in these Aktivate General Terms and Conditions, the following Capitalized terms shall be defined as follows:
“Authorized User” means a Student, parent or family member of a Student, or Instructor authorized to use the Licensed Services.
“Availability” has the meaning in Section 8 below.
“Claims” has the meaning in Section 9 below.
“Confidential Information” has the meaning in Section 7 below.
“Customer” or “You” means a School, School District, educational agency or LEA or SEA (as defined in the Privacy Policy) that has duly executed an Aktivate License Agreement (including executing an Order Form).
“Excused Outage” has the meaning in Section 8 below.
“Instructor” means a coach, teacher, or other school employee of a School or School District.
The “Licensed Services” means the portion of the Services (i.e., the specific products and services)covered by your license as described in a duly-executed Order Form..
“PII” has the meaning in Section 5 below.
“School” means an institution at which instruction is provided, which institution may be considered to comprise one educational unit (i.e., an elementary school, middle school, junior high school or high school) subject to the Agreement.
“School District” means the administrative body that supervises Schools within a specified region.
The “Services” means, and shall include, all platform, products and services made available by Aktivate for scholastic sports and activities management.
“Student” means an individual enrolled in a School.
“Third Party Website” means a website owned and/or operated by an entity other than Company and Customer.
“User” means any Authorized User together with any other person who may use the Services, or any portion thereof, at any time or for any reason, whether or not such person is an Authorized User.
2. Online Practices. Customer is responsible for the actions of its Schools, Students, Instructors and other Authorized Users in their use of the Services, including their compliance with all relevant terms of the Agreement. In particular, Customer will ensure that its Schools, Students, Instructors and other Authorized Users do nothing that is prohibited by Aktivate’s Terms of Service. Customer understands and agrees: (a) that any loss or damage of any kind that occurs as a result of the use or misuse of the Services by Customer or any of its Schools, Instructors, Students, and/or other Authorized Users is solely Customer’s responsibility; and (b) Customer shall be responsible for any and all breaches of the Agreement by its School(s), Instructors, Students, and/or other Authorized Users.
3. Links. The Services may present links to Third Party Websites. Such links, when present, are provided only as a convenience to Customer, its Authorized Users (and other customers of Company and users of the Services). Company is not responsible for the availability or content of any Third Party Website and disclaims all warranties and liability relating thereto. Use of the Third Party Website(s) is at Customer’s sole risk and liability. Customer should direct any concerns regarding any Third Party Website to the administrator of such Third Party Website. Individual websites and/or products of Aktivate may contain additional disclaimers regarding such links, and such disclaimers are hereby incorporated, with respect to such websites or products, by reference.
4. Services and Equipment.
(a) Aktivate shall have the right at all times, without prior notice, to make updates, changes, and modifications to the Services, including the Licensed Services in its discretion. Aktivate shall also have the right to include within the Services advertisements and sponsorships, which advertisements and sponsorships may be sold by third parties on Aktivate’s behalf.
(b) Customer shall be solely responsible for providing and maintaining all hardware, software, electrical and other requirements for Customer’s use of the Services, including without limitation, telecommunication equipment, Internet access, web browsers or other equipment, and programs that may be required to access and use the Services. Customer is responsible for ensuring that Customer’s equipment is compatible with and meets the minimum system requirements for use of the Services. Company does not guarantee or warrant compatibility between the Services and Customer’s equipment.
5. Privacy, FERPA, and Compliance with Law. Company may receive and handle personally identifiable information (“PII”) in the course of delivering the Services under the Aktivate License Agreement. PII obtained will be used for the purposes of performing and delivering the Services, and will not be disclosed to third parties except as required to provide the Services to Customer as contemplated in the Agreement, or as otherwise permitted or required by applicable law. PII maintained in education records is governed by the United States Family Education Rights and Privacy Act, 20 U.S.C. 1232g, 34 CFR Part 99 (“FERPA”). Customer shall be responsible for responding to requests for education records received by Company from third parties.
Customer represents and warrants that it is in compliance with applicable information and online protection laws, including, but not limited to, COPPA and FERPA. To the extent that PII as to any Student under the age of thirteen (13) is provided to Company, Customer represents and warrants that it has obtained all requisite consents and authorizations or otherwise has the authority to provide such information to Company. To the extent that any information covered by FERPA is being made available to Company or to any third party (including other Students), Customer represents and warrants that it has given all applicable notices and has received all applicable consents, and has not received any effective objections thereto.
6. Information Security. Company uses commercially reasonable practices, including administrative, technical, and physical safeguards designed to reasonably protect the confidentiality, availability, and integrity of Customer and Authorized User data in alignment with requirements of applicable laws and regulations, including FERPA. This includes, but is not limited to, encryption of data in transit when submitted across the Internet, access controls, firewalls and user authentication protocols. The Internet, however, is not entirely secure, and Company will, accordingly, not be responsible for security incidents that are not reasonably within its control. If and as required by applicable laws, Company will report to Customer any unauthorized access to Customer Data and applicable notifications.
7. Confidentiality.
(a) Each party may disclose to the other certain non-public information or materials relating to a party's products, intellectual property, business, marketing programs and efforts, personally identifiable information of the party’s personnel, end users, students and/or customers as applicable, and other confidential information and trade secrets (“Confidential Information”).
(b) Confidential Information does not include information that: (i) is or becomes publicly available through no breach by the receiving party of the Agreement; (ii) was previously known to the receiving party prior to the date of disclosure, as evidenced by contemporaneous written records; (iii) was acquired from a third party without any breach of any obligation of confidentiality; (iv) was independently developed by a party hereto without reference to Confidential Information of the other party; or (v) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the party receiving such subpoena or order shall, when legally permissible, promptly inform the other party in writing, provide a copy thereof, and only disclose Confidential Information necessary to comply with such subpoena or order.
(c) Except as expressly provided herein, the receiving party will not use or disclose any Confidential Information of the disclosing party without the disclosing party's prior written consent, except disclosure to and subsequent uses by the receiving party's employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving party's obligations under this Section.
(d) The receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party's own Confidential Information, and in no event less than reasonable care.
(e) Each party acknowledges that due to the unique nature of the other party's Confidential Information, the disclosing party may not have an adequate remedy solely in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
8. Availability. The hosted elements of the Services will be available for remote access 99.5% of the time each calendar month of the Term, excluding Excused Outages (as defined below) (“Availability”). Company will attempt to schedule any planned maintenance or upgrades at times when usage of the Services is typically low, and will attempt to communicate any outages associated with planned maintenance or upgrades to its customers in advance via email or through notifications within the Services. Downtime as a result of any causes beyond the control of Company or that are not reasonably foreseeable by Company, including, without limitation, each of the causes noted below, are excluded from the Availability calculations (collectively, “Excused Outages”):
a. Customer environment issues affecting connectivity or interfering with the Services, including without limitation, Customer’s telecommunications connection or any other Customer software or equipment, Customer’s firewall software, hardware or security settings, Customer’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Customer;
b. Any third party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
i. Force majeure events including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; catastrophic or unusual Internet delays, denial of services attacks, or other hacking activities;
ii. Issues related to third party domain name system (DNS) errors or failures; and
iii. Emergency maintenance of the Services, for which Customer may not receive advance notice.
In the event Company fails to achieve the Availability requirement, Company will use commercially reasonable efforts to correct the interruption as promptly as practicable.
9. DISCLAIMER, LIABILITY AND DAMAGES; INDEMNITY
(a) DISCLAIMER.
THE SERVICES ARE PROVIDED “AS IS”, WITH ALL FAULTS, AND WITHOUT WARRANTIES BY COMPANY AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AKTIVATE OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF AKTIVATE’S OBLIGATIONS HEREUNDER. Specifically, Company makes no warranty that the Services, or any portion of them, will meet Customer’s requirements or that access to the same will be uninterrupted or error-free. You acknowledge and agree that Company and its vendors and licensors do not operate or control the Internet and that: (I) viruses, worms, Trojan horses, or other undesirable data or software; or (II) unauthorized users (e.g. hackers) may attempt to obtain access to and/or damage the Services and/or your content, websites, computers, or networks. Company will not be responsible for those activities.
NEITHER COMPANY NOR ITS AFFILIATED PARTIES OR THEIR LICENSORS OR VENDORS WILL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (a) ANY UNAUTHORIZED USE OF THE SERVICES OR USE OF THE SERVICES FOR PURPOSES NOT INTENDED UNDER THE AGREEMENT, OR (b) ANY LIABILITY OR DAMAGE CAUSED OR INITIATED BY THIRD PARTIES AND AFFECTING CUSTOMER’S COMPUTERS, COMMUNICATION FACILITIES, SOFTWARE, DATA, OR SERVICES THAT MAY RESULT FROM USE OR ACCESS OF THE SERVICES.
(b) LIMITED DAMAGES AND REMEDIES. NEITHER COMPANY NOR ITS AFFILIATED PARTIES OR ANY OF THEIR LICENSORS OR VENDORS SHALL BE LIABLE TO CUSTOMER, OR ANY SCHOOLS, INSTRUCTORS, STUDENTS, OTHER AUTHORIZED USERS, OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA AND THE LIKE) ARISING OUT OF THIS AGREEMENT, INCLUDING THE USE OF OR THE INABILITY TO USE THE SERVICES. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to Customer. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL COMPANY OR ITS AFFILIATED PARTIES BE LIABLE FOR DAMAGES (WHETHER IN CONTRACT OR TORT) OR MONETARY REMEDIES OF ANY KIND IN THE AGGREGATE UNDER THE AGREEMENT THAT EXCEED THE LICENSE FEE PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR CLAIMS GIVING RISE TO THE LIABILITY.
(d) Indemnity. Customer agrees to indemnify, defend, and hold harmless Company and its agents, employees, representatives, licensors, affiliates, corporate parents and subsidiaries from and against any and all claims, losses, demands, sanctions, fines, costs, causes of action and judgments (including attorneys’ fees and court costs) of third parties (collectively “Claims”) arising, directly or indirectly, from or concerning any breach or alleged breach of the Agreement by Customer and/or any of its Schools, Instructors, Students, or other Authorized Users, and to reimburse Company on demand for any losses, costs or expenses it incurs as a result of any such Claims.
10. Termination
(a) The Agreement will terminate (i) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of the Agreement, unless the breach is cured before such thirtieth (30th) day; or (ii) upon written notice by either party, immediately, if (1) a receiver is appointed for the other party or its property; (2) if the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (3) if any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
(b) Immediately upon expiration or termination of Customer’s license for any reason (including expiration or termination of the Agreement), Customer will cease using the Services and cause all Schools, Instructors, Students, or other Authorized Users that have used the Services pursuant to Customer’s license to cease using the Services.
(c) The provisions of this Agreement that by their context are intended to survive the expiration or termination of this Agreement will survive the expiration or termination of this Agreement, including, without limitation, all provisions of the Terms of Service related to limitation and disclaimer of warranty, limitation of liability, Company’s ownership rights, and your representations and indemnities.
(d) Termination does not entitle Customer to any refund or reduction of license fees already paid by or due from Customer. If Company terminates the Agreement due to an uncured material breach by Customer, in addition to any and all rights and remedies available to Company, Customer shall be obligated to pay Company the full license fees for the then-current term. If Customer terminates the Agreement due to an uncured material breach by Company, Customer shall only be obligated to pay Company for use of the Services up to and including the effective date of termination. Customer understands and agrees that if Customer requests a pro-rata refund as a remedy hereunder, then such request will be an election of remedies and the sole remedy available to Customer with respect to any dispute with Company.
11. Miscellaneous.
(a) Company’s Customers. Company may use and disclose to third parties Customer’s name and, if Customer is a School District, the names of any affiliated Schools as part of a list of Company customers or references.
(b) Remedies and Reserved Rights. In addition to the rights set forth in Section 4(a), Company reserves the right at any time, and from time to time, to discontinue, or temporarily or permanently suspend and limit access to the Services (or any part thereof) to Customer or any and all Authorized Users or other Users with or without notice to Customer for maintenance or security or other reasons. Customer agrees that Company shall not be liable to it or to any third party for any modification, suspension, discontinuation, or limitation of the Services, or any part thereof. Company also reserves the right at any time, and from time to time, to modify, delete or terminate any of the content or data on or within the Services.
(c) Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth in the Aktivate License Agreement Order Form or such email address or address as subsequently modified by written notice given in accordance with this Section. Unless and until modified, all notices to Company shall additionally be sent via e-mail to hesky@aktivate.com and dhruv@aktivate.com.
(d) Force Majeure. Any delay in or failure of performance by Company under the Agreement will not be considered a breach and will be excused to the extent caused by any occurrence beyond the reasonable control of Company, but not limited to, fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; pandemics, quarantines, embargoes and other similar governmental action; catastrophic or unusual Internet delays, denial of services attacks, or other hacking activities.
(e) No Third Party Beneficiaries. This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and assigns, and no other person will have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise. In particular, Schools, Students, Instructors and other Authorized Users are not third party beneficiaries of this Agreement.
(f) Waiver. The failure of any party to seek redress for violation of or to insist upon the strict performance of any agreement, covenant or condition of this Agreement will not constitute a waiver: (i) with respect thereto, except to the extent that such waiver is in writing, or (ii) with respect to any subsequent act.
(g) Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any part of the Agreement (including, for avoidance of doubt, these Terms and Conditions) is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties as reflected in the Agreement, and the remaining portions shall remain in full force and effect. If the portion held invalid or unenforceable cannot be construed in a manner consistent with applicable law to reflect the original intentions of the parties, such provision will be limited to the minimum extent necessary to render the same valid or will be excised from this Agreement, as the circumstances require, and this Agreement will be construed as if said provision had been incorporated herein as so limited or as if said provision had not been included herein, as the case may be, and enforced to the maximum extent permitted by law.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument.
(i) Assignment. The Agreement and any rights and responsibilities hereunder may not be assigned or delegated by Customer, including by action of law, without the express written consent of Company. Any assignment or delegation in violation of this Section will be void and of no effect. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
(j) Independent Contractors; No Partnership or Joint Venture. The parties are independent contractors and nothing herein contained will be construed as creating any relationship of employer/employee, partnership, contractor, joint venture, or otherwise between the parties hereto, nor will this Agreement be construed as conferring on any party any express or implied right, power, or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of any other party. In addition, this Agreement will not be construed as creating any relationship between one party and the other party’s employees. Accordingly, neither party nor its employees will be entitled, as a result of this Agreement, to any of the benefits under any employee benefit plan the other party presently has in effect or may put into effect; nor will either party or its employees be considered employees of the other party for any purpose.
(k) Entire Agreement. This Agreement constitute the entire agreement between the parties relating to the subject matter hereof and supersedes any prior agreement or understandings between them with respect to said subject matter. There are no other agreements, representations, warranties, promises, covenants, commitments or undertakings other than those expressly set forth herein. In particular, any terms and conditions which may appear as pre-printed language or otherwise be on, attached to, or inserted within any order forms, quotes, invoices, bills, or other similar forms or documents issued by you shall be of no force or effect even if such forms or documents are accepted by Aktivate.
(l) Modification; Amendment. This Agreement and any SOWs may not be modified or amended unless such modification or amendment is agreed to by both parties in writing signed by each parties authorized representative.
(m) Dispute Resolution. This Agreement shall be governed, construed and interpreted solely in accordance with the laws of the State of New York without regard to its conflict of law principles that would require the application of the law of any other jurisdiction. Exclusive jurisdiction and venue for any claims made by either party against the other will be the courts of New York and the parties irrevocably consent to the jurisdiction of such courts.
(n) Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.