Aktivate Terms of Service

FamX Inc. dba Aktivate (“Aktivate, owns and operates the Aktivate website (“Website”), the Aktivate mobile platform, and various tools and product levels for scholastic sports and activities management (collectively, the “Services”). By accessing the Services, You agree to abide by these Terms of Service and our Privacy Policy. Your use of the Services is subject to the Terms of Service, and all other terms and policies posted by Aktivate on the Service, and your payment of any required fees. You represent that You are 18 years of age or older, are lawfully able to enter into contracts and agree to be bound by these Terms of Service. If You are entering into these Terms of Service on behalf of your employer, You warrant You have authority to bind your employer to these Terms of Service and all references to “You” will be deemed to include your employer. If You have any questions concerning these Terms of Service, please contact us.

1. Definitions

· Capitalized terms not defined in this Definitions section shall have the meaning set forth in applicable law when a citation to particular laws is present.

· The following capitalized terms shall have the meanings set forth in Aktivate’ Privacy Policy: (a) Agreement, (b) Authorized User, (c) Customer, (d) LEA, (e) Other Information, (f) School District, (g) SEA; (h) Student Data; and (i) Third Party Service.

· As used in the Terms of Service, (1) the words “You” and “your” refer to you as a user of the Service, including as a Customer, Instructor or Student or other Authorized User; and (2) the words “we”, “our” and “us” refer to Aktivate.

2. Changes

Aktivate reserves the right, in our sole discretion, to modify or replace these Terms of Service at any time by updating these Terms of Service, and posting the updated terms at this URL. If a revision is material, we will provide at least thirty (30) days notice prior to any new terms taking effect. Aktivate will determine, in its sole discretion, what constitutes a material change.

By continuing to access or use the Services after any revisions to the Terms of Service become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, You are no longer authorized to use the Services.

3. Use of the Services

You may only use the Services as described in the Agreement or as expressly permitted by us. Any breach of the Agreement (including, for avoidance of doubt, the Aktivate Privacy Policy) by You or your agents will constitute a breach by You. Except as expressly agreed to by Aktivate, You will not (and will not allow any third party to): (i) permit any third party to access and use the Services; (ii) decompile, disassemble, or reverse engineer the Services, except to the extent expressly authorized by law; (iii) use the Services or any of our confidential information to develop a competing product or service; or (iv) provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the Services for the benefit of any third party.

To the extent that the Service may provide You with an opportunity to upload material (“Uploads”), be advised that Aktivate has no obligation to screen, edit, or review such uploads prior to their appearance on the Service, and Uploads do not necessarily reflect the views of Aktivate. In no event shall Aktivate have any liability or responsibility for the Uploads or (or the loss thereof for any reason) or for any claims, damages, or losses resulting from their use or loss and/or appearance on the Service. Aktivate reserves the right to monitor the Uploads and to remove anything which it considers in its absolute discretion to be offensive, ineffective, or otherwise in breach of the Terms of Service, or for any other reason Aktivate deems necessary.

You may not use the Services:

(a) to upload, post, display, e-mail or otherwise transmit or make available to any other User any content (including images, sounds, messages or other materials) that is unlawful, harmful, threatening, intimidating, abusive, harassing, fraudulent, tortious, defamatory, derogatory, vulgar, obscene, illegal, libelous, invasive of another’s privacy, disrespectful, hateful, or racially, ethnically or otherwise objectionable;

(b) to upload, post, transmit, display or otherwise make available any unsolicited bulk e-mail, political campaigning, commercial solicitation, chain letters, pyramid schemes, mass mailings, or any form of spam;

(d) to impersonate any person or entity or falsely state or otherwise misrepresent their affiliation with any person or entity;

(e) to forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

(f) to upload, post, e-mail or otherwise transmit any content that You do not have the right to transmit under any law or as a result of any contractual or fiduciary relationships You have (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

(g) to upload, post, e-mail or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

(h) to upload, post, display, e-mail or otherwise transmit any material that contains software viruses or worms or any other computer code, files or programs designed to, or that may otherwise, disable, interrupt, destroy, redirect, monitor another user’s usage, limit or otherwise interfere with or inhibit the functionality of any computer software or hardware or telecommunications equipment;

(i) to disparage the products or services of any company or individual;

(j) to post or otherwise communicate to any person racially or ethnically offensive language, or explicit/obscene language, or to solicit/post sexually explicit images, or to discuss or incite illegal activity;

(k) to interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;

(l) to post content if You are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from using the Services;

(m) to intentionally or unintentionally violate any applicable local, state, national, or international law or regulation;

(n) to harvest, store, or otherwise collect personal data or information about users, including email addresses, without their consent; or

(o) if You have failed to deliver to Aktivate any payment for items licensed or purchased by You.

4. Proprietary Rights and Trademark Notices.

The entire content of the Services and any supporting software or platforms are the proprietary property of Aktivate and/or its licensors, and are protected by U.S. and international copyright and other intellectual property laws. The reproduction, redistribution, modification or publication of any part of the Services without the express written consent of Aktivate is strictly prohibited. You have no rights to transfer or reproduce the Services or prepare any derivative works with respect to, or disclose confidential information pertaining to, the Services. Under no circumstances will You be deemed to receive title to any portion of any Services, title to which at all times will vest exclusively in us and our licensors. The Services are not a “work made for hire“, as that term is defined in Section 101 of Title 17 of the United States Code (“the Copyright Act“). You will preserve the Services from any liens, encumbrances, and claims of any individual or entity. You will not use any of our information or data to contest the validity of any intellectual property of Aktivate’s or our licensors. Any disallowed or improper use of our information and data will constitute a material, non-curable breach of the Terms of Service and related agreements.

Unless otherwise indicated, trademarks that appear in the Services are trademarks of Aktivate or its affiliates. All other trademarks not owned by Aktivate or its affiliates that appear on or in the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Aktivate and its affiliates. You agree not to display, disparage, dilute, or taint our trademarks, or otherwise use our trademarks in any way that would misrepresent the ownership of such marks. Any permitted use of our trademark by You shall be exclusively to and for the benefit of Aktivate.

5. Links to and from Other Websites

You may have linked to the Service from a third-party website and the Services may provide links to other third-party websites (each a “Third Party Site”). Third Party Sites are not under the control of Aktivate, and Aktivate is not responsible or Liable for the content of any Third Party Site. A link does not imply that Aktivate endorses, sponsors, or is affiliated with any Third Party Site. Your use of Third Party Sites is at your own risk and liability and subject to the terms and conditions of use for such sites. The Terms of Service do not apply to Third Party Site.

You may only post links to the Services for the purpose of directing other users to the Services, and must remove any link to the Services immediately upon request from Aktivate.

6. Feedback

You may provide us with suggestions, comments or other feedback (collectively, “Feedback“) with respect to our products and services, including the Services. Feedback is voluntary and we are not required to hold it in confidence. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, You grant us an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with our business, products, and services, including the enhancement of the Services.

7. User Information and Privacy

Aktivate reserves the right to collect personal information from users of the Services who volunteer such information, and maintains a privacy policy regarding the use of this information.

Aktivate privacy policies, which govern the manner in which we collect, use, disclose and establish our online privacy policies and practices, are located here, and are incorporated herein by reference.

8. User IDs and Passwords

User IDs are granted to individual, named persons and may not be shared.

Authorized Users must keep their user IDs and passwords related to the Services strictly confidential and not share such information with any unauthorized person. Customer is responsible for any and all actions taken by their Authorized Users with respect to accounts and passwords. You agree to immediately notify us of any unauthorized use of which You become aware.

9. English Language Controls

Notwithstanding any other provision of these Terms of Service, any translation of these Terms of Service is provided solely for your convenience, and shall not control the meaning or application of this Agreement.

The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original English. In the event of a discrepancy or conflict between any non-English version of these Terms of Service, and the English-language version of these Terms of Service, the English language version shall prevail. All Notice made under this Agreement shall be in the English language.

9. User Content

Our use of Student Data is governed by both: (i) our Privacy Policy; and (ii) by school district requirements which are part of our agreement with your school district, and may override our Privacy Policy.

As used herein (and defined in our Privacy Policy): 'Student Data' means the personally identifiable information Aktivate receives regarding a student within the [School District or other educational agency primarily responsible for the supervision of public schools]

Any data, information, material or content (including school-specific content like logos and mascots), that You submit or post via the Services is referred to in these Terms of Service as “User Content.” You retain all copyright to all original User Content You upload to the Services. You grant us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, exploit, create derivative works from, distribute, and/or publicly perform or display any and all User Content, in whole or in part, in any manner or media known now or existing in the future. The foregoing grant includes the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark or patent laws that exist in any relevant jurisdiction. Also, in connection with the exercise of these rights, You grant us, and anyone authorized by us, the right to identify You as the author of any of your postings or submissions (e.g., by name, email address or user name), as we deem appropriate. You understand that the technical processing and transmission of the Services, including content submitted by You, may involve transmissions over various networks, and may involve changes to the content to conform and adapt it to technical requirements of connecting networks or devices. You acknowledge and agree that You will not post on Services any User Content that You do not have the absolute right to post, including the grant of all of the rights granted above. You further acknowledge and agree that You are solely responsible and liable for any User Content that You post on the Services and for any infringement or other liability that may result. You represent and warrant that (i) all User Content is either wholly original to You, or all third party rights therein have been fully cleared for use as contemplated by these Terms of Service, and that You have the right to grant the rights granted herein without violating the rights of any third party; (ii) the User Content and the posting thereof on the Services does and will not, in any way, violate or breach any of the Terms of Service or violate or infringe upon the rights of any third party, and (iii) Aktivate shall not in any circumstance be required to pay or incur any sums to any person or entity as a result of its use or exploitation of the User Content unless expressly agreed in writing by Aktivate prior to the posting of such content. Without limiting the foregoing, Aktivate reserves the right to use the User Content as it deems appropriate, including, without limitation, deleting, rejecting, or refusing to post it, and to allow persons authorized by Aktivate (which may include Schools, Instructors, and/or site administrators) to do the same. Aktivate and persons authorized by Aktivate shall not be responsible for any third party use of User Content; nor shall Aktivate be obligated to require third parties to supply attribution with respect to User Content. By providing content to the Services, You affirm that (a) You have no objection to the publication, use, modification, or deletion and exploitation of the User Content by Aktivate or third parties authorized by us (e.g., Schools, Instructors or site administrators); (b) You forever waive and agree not to claim or assert any entitlement to any and all moral rights as an author in any of the User Content; and (c) You forever release Aktivate and all Authorized Users (including Schools, Instructors, and site administrators) from any claims that You could otherwise assert against Aktivate or them by virtue of any such moral rights.

YOU SHALL BE SOLELY RESPONSIBLE FOR CONTENT YOU PLACE ON THE SERVICES. YOU ASSUME ALL RIGHT AND RESPONSIBILITY FOR DETERMINING WHETHER ANY CONTENT YOU POST IS IN THE PUBLIC DOMAIN. YOU GRANT TO AKTVATE’S THE RIGHT TO EDIT, COPY, PUBLISH, DISTRIBUTE, TRANSLATE AND OTHERWISE USE IN ANY MEDIUM AND FOR ANY PURPOSE ANY CONTENT THAT YOU PLACE ON THE SERVICES, WITHOUT COMPENSATION TO YOU.

10. Your Warranties

YOU REPRESENT AND WARRANT THAT YOU HAVE PROPER AUTHORIZATION, LICENSES, AND PERMISSIONS FOR PLACEMENT OF ALL CONTENT YOU PLACE ON THE SERVICES. YOU MAY POST ON THE SERVICES ANY CONTENT OWNED BY YOU, CONTENT FOR WHICH YOU HAVE RECEIVED EXPRESS PERMISSION FROM THE OWNER, AND CONTENT IN THE PUBLIC DOMAIN.

In addition, You represent and warrant that (i) You have full power, capacity, and authority to agree to these Terms of Service; (ii) your use of the Services will at all times be in compliance with all applicable local, state, federal, and international laws and regulations (including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing and Internet marketing); and (iii) the information You have provided us for purposes of creating your account is true and correct and that You will promptly notify us of any updates and/or other changes to that information.

11. Indemnification

You agree to indemnify Aktivate and hold it and its subsidiaries, affiliates, officers, licensors, contractors, directors, employees, and agents harmless from any and all claims, actions, proceedings, losses, deficiencies, damages, liabilities, fines, sanctions, costs, and expenses (including but not limited to reasonable attorneys’ fees and all related costs and expenses) made against Aktivate by any third party arising out of your use of the Service, your breach of any representation, warranty or obligation, your violation of the Terms of Service, or your violation of any rights of another user.

12. Suspension of Services and Removal of Customer Data

We may, at our sole discretion, suspend your access to the Services or remove any Content for any of the following reasons: (i) to prevent damages to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; and (iii) to otherwise protect ourselves or our affiliates partners, or users from potential legal liability. Additionally, we reserve the right to cancel unconfirmed accounts or accounts that have been inactive, or to modify or discontinue the Services or any portion thereof. This Section will not be construed as imposing any obligation or duty on us to monitor use of the Services.

13. Disclaimer of Warranties

THE SERVICES ARE PROVIDED “AS IS“ AND “AS-AVAILABLE,“ WITH ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND. AKTIVATE AND ITS VENDORS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF SERVICES, IS AT YOUR SOLE RISK. 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. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT AKTIVATE 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 DAMAGE THE SERVICES, AND OTHER CONTENT, WEB SITES, COMPUTERS, OR NETWORKS. WE WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.

14. Limitation of Liability and Damages

NEITHER AKTIVATE NOR ITS AFFILIATED PARTIES AND THEIR VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXAMPLARY DAMAGES, DAMAGES FOR THE LOSS OF PROFITS, GOODWILL, USE OF DATA OR BUSINESS, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF AKTIVATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE LOSS OF DATA AND/OR THE USE OR INABILITY TO USE THE SERVICE; (II) THE COST OF PROCURING SUBSTITUTE SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES OR THE AGREEMENT. THE TOTAL LIABILITY OF AKTIVATE AND ITS VENDORS AND LICENSORS TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT) WILL NOT EXCEED THE TOTAL FEES YOU PAID, IF ANY, DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES PROVIDED ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

15. Termination

Aktivate reserves the right at any time to discontinue, temporarily or permanently, the Services or any part thereof or terminate any user’s access to the Services or any part thereof. We may also modify, delete or adapt the Services at any time without any notice or obligation to the user at Aktivate’s sole discretion. Your right to use and otherwise access the Services is automatically terminated if You violated the Terms of Service. You agree that Aktivate will not be liable to You or any third party for any modification, suspension, or discontinuation of the Services, or any part thereof. Upon termination for any reason, You must cease all access to the Services.

Upon termination of Services, Aktivate shall not be obligated to retain customer data and will not be responsible for any loss of data.

All provisions of the Terms of Service as to limitation and disclaimer of warranty, limitation of liability, Aktivate’s ownership rights and your representations and indemnities shall survive termination.

16. Governing Law, Venue, and Limitation of Actions

These Terms of Service and your relationship with Aktivate will be construed according to, and the rights of the parties will be governed by, the law of the State of New York, without reference to its conflict of laws rules. Any action at law or in equity arising out of or directly or indirectly relat16ing to these may be instituted only in the Federal or state courts located in New York, NY. You consent and submit to the personal jurisdiction of those courts for the purposes of any action related to the Services and these Terms of Service, and to extra-territorial service of process. The failure of Aktivate to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in such provision, and the other provisions of the Terms of Service shall remain in full force and effect. No action, regardless of form, arising out of the Services or these Terms of Service, may be brought by either party more than one (1) year after the cause of action has arisen.

These Terms of Service constitute the entire agreement between You and Aktivate, govern your use of the Services, and supersede any agreements between You and Aktivate concerning the Services. You may also be subject to additional terms and conditions that apply when You use affiliated services, third party content or third party software.

17. Digital Millennium Copyright Act Compliance

If You have any copyright concerns about any materials posted on the Services by others, please let Aktivate know. We comply with the provisions of the Digital Millennium Copyright Act (17 U.S.C. § 512). Unless otherwise stated in any specific DMCA designation provided by Aktivate, please provide us with written notice (“Notice”) by contacting our designated agent at the following address:

DMCA Designated Agent, Aktivate

576 Fifth Avenue, Suite 903

New York, NY 10036

Email: dmca@aktivate.com

To be effective, the Notice must include the following:

· A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, (“Complaining Party”) of an exclusive right that is allegedly being infringed upon;

· Information reasonably sufficient to permit Aktivate to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address;

· Identification of the allegedly infringing material on the Services (“Infringing Material”), and information reasonably sufficient to permit Aktivate to locate such material on the Services;

· Identification of the copyrighted work claimed to have been infringed upon (“Infringed Material”), or if multiple copyrighted works on the Services are covered by a single Notice, a list of each copyrighted work claimed to have been infringed (please be specific as to which Infringing Material is infringing on which infringed Material);

· A statement that the Complaining Party has a good faith belief that use of Infringing Material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

· A statement that the information in the Notice is accurate, and under penalty of perjury, that the Complaining Party is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

18. Violations

Please report any violations of these Terms of Service by contacting us at support@aktivate.com.