CONVERGE LEARNING MANAGEMENT SYSTEM TERMS OF SERVICE
THIS TERMS OF USE AGREEMENT (this "Agreement") sets forth the terms and conditions pursuant to which Converge provides its end user subscribers (each, a "Subscriber") with access to Converge, a proprietary learning management system and secure academic social network (the "Website"). This Agreement is incorporated into and governs each sales order that Converge offers to its Subscribers (each, the "Sales Order"). Acceptance of the Sales Order or Subscriber’s use of or access to the Converge System shall constitute Subscriber’s unconditional acceptance of this Agreement. This Agreement shall be effective upon the date of Subscriber’s acceptance of the Sales Order or THE DATE OF Subscriber’s first use of or access to the Converge System (the "Effective Date"). If Subscriber does not agree to be bound by the Agreement, Subscriber may not access or use the Website or the services.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY CONVERGE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Converge will make a new copy of the Terms available on our website. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s).
Grant of License; Subscription
Converge hereby grants to Subscriber a limited license to access and use the Converge System during the term specified in the Sales Order, including any renewals thereof (the "Term") . Subscriber hereby accepts the subscription to the Converge System more particularly described in the Sales Order (the "Subscription").
Billing and Payment
Subscriber agrees to pay the fees for the Subscription to the Converge System in accordance with the payment terms set forth in the Sales Order. Converge will send an invoice to Subscriber, and Subscriber shall pay the amount due within 30 days of the invoice date by mailing a check to the address indicated on the invoice or depositing the amount due via wire transfer (in which case Subscriber must contact Converge for wire transfer instructions). If Subscriber overestimated usage, Converge shall not be obligated to refund any fees paid hereunder. If, however, Subscriber uses more than the number of Subscribers originally estimated and paid for, Converge may submit an amended invoice for the amount of such excess usage, and Subscriber agrees to pay the variance within 30 days of the invoice date. Except to the extent fixed in the Sales Order, Converge’s Subscription fee is subject to change by Converge without notice and in its sole discretion. Subscriber shall be solely responsible for any personal property taxes or local licensing fees resulting from Subscriber’s Subscription or in connection with Converge's delivery of the Converge System under this Agreement. Customer will pay in U.S. dollars unless otherwise set forth in the applicable Sales Order.
Responsibility for Content
Content Types
Subscriber acknowledges that all Content is the sole responsibility of the party from whom such Content originated. Subscriber is entirely responsible for all Content that Subscriber uploads, posts, e-mails, transmits or otherwise makes available through Converge ("YOUR CONTENT"), and other Users of Converge, and not Converge, are similarly responsible for all Content they make available through Converge ("USER CONTENT").
Storage
Converge has no obligation to store any of Your Content made available on Converge. Converge has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Converge.
Ownership
Converge Content
The Converge System is owned and copyrighted by Converge and offered through a subscription, not sold, to Subscriber. All right, title, and interest in and to all images, source code, updates, enhancements, modifications, and improvements contained in or related to the Converge System, along with all intellectual property rights related thereto, shall remain with Converge, regardless of the source giving rise to the intellectual property and despite any modifications or adaptations made for the benefit of Subscriber. The “Converge” trademark is protected by United States and international trademark laws and treaties, as well as other intellectual property laws. Subscriber is not granted any license to use any of Converge’s trade or service marks without permission and Converge retains all right, title, and interest in its trade and service marks.
Your Content
Except with respect to Your Content, Subscriber agrees to have no right or title in or to any Content that appears on or in Converge. Converge does not claim ownership of Subscriber Content. However, Subscriber grants Converge a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, make archive or backup copies, and publicly display, Subscriber Content (in whole or in part) for the purposes of operating and providing Converge to Subscriber and other Users. When Subscriber publishes Subscriber Content on or in Converge, Subscriber represents authority to grant the aforementioned license to Converge.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on or in Converge, Subscriber hereby expressly permits Converge to identify Subscriber by username as the contributor of Your Content in any publication in any form, media, or technology now known or later developed in connection with Your Content. Converge assumes no responsibility for Your Content or any other content not produced by Converge on Converge. Converge may at any time and in its sole discretion screen, monitor, block, remove or otherwise exercise control over any of Your Content or anyone else’s Content that we determine violates these Terms, including the Code of Conduct, any applicable law, or otherwise may expose Converge to civil or criminal liability or reflect poorly on Converge. In addition, Converge may permanently terminate Subscriber access to Converge in the event it is determined that Subscriber has caused any such violation. In no event shall such rights obligate Converge to exercise control over Your Content or anyone else’s Content.
User Code of Conduct
As a condition of use, Subscriber agrees not to use Converge for any purpose that is prohibited by the Agreement or by applicable law. Do not post, or permit others to post, content on Converge that
- encourages illegal activities, is fraudulent, or is unlawful
- infringes or violates any rights of any party, including but not limited to, intellectual property, privacy and/or publicity rights.
- expresses or implies that Your Content is endorsed by Converge
- insults, defames, harasses, or threatens others
- violates the copyright or intellectual property or privacy rights of others;
- contains obscene material (unless such material is made available for educational purposes);
- harms or impersonates others;
- advertises or sells a product or service
Do not attempt or engage in, any potentially harmful acts that are directed against Converge, including but not limited to violating or attempting to violate any security features of Converge, introducing viruses, worms, or similar harmful code into Converge, or interfering or attempting to interfere with the use of Converge by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the Website.
Converge reserves the right, but shall not be required, to monitor, edit or remove Your Content from Converge without notice for any reason without Subscriber permission. Converge also reserves the right to terminate Subscriber account at its sole discretion. Converge reserves all rights not expressly granted to Subscriber in this Agreement and no additional rights are granted by implication, estoppel or otherwise.
Feedback
Subscriber agrees that Converge may use, without restriction or royalty obligation, any comments, suggestions or contributions ("Feedback") provided by Subscriber with respect to the Converge System during the course of Subscriber’s use of the Converge System. Subscriber represents and warrants that the Subscriber has all rights necessary to submit the Feedback. Subscriber grants to Converge a fully paid, royalty-free, perpetual, irrevocable, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, store, transmit, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
Subscriber Information
Subscriber hereby permits Converge to use information regarding its schools or district (other than student information) to perform its obligations hereunder and to be used and disclosed to internal and external researchers and other third parties that have executed confidentiality agreements. However, Converge acknowledges user’s ownership of all personal data and shall seek permission from Subscriber before including such information that is identifiable to the school or district in any publication.
Confidential Information
Subscriber acknowledges that all underlying ideas, algorithms, item calibrations, test scripts, concepts, procedures, processes, principles, know-how, and methods of operation that comprise the Converge System, including updates, enhancements, modifications, and improvements are confidential and contain trade secrets (collectively, "Confidential Information"), and Subscriber will respect such confidentiality and shall keep all Confidential Information confidential. Subscriber agrees not to use, disclose, or distribute any Confidential Information, directly or indirectly, without the prior written consent of Converge, except that Converge authorizes Subscriber to disclose Confidential Information to Subscriber's employees or agents who have signed written confidentiality and nondisclosure agreements before such disclosure. Each party shall return any and all Confidential Information, including any and all copies of such Confidential Information, upon the termination or cancellation of this Agreement, or upon any written request from the other party.
Indemnification
Each party agrees to indemnify, defend and hold harmless the other party and its officers, directors, agents and employees, against all costs, losses and litigation expenses incurred through claims of third parties against such party based on the Subscriber’s breach of this Agreement or its use of Converge, or of any breach of any representation and warranty made in this Agreement.
Support & Maintenance
Converge may, from time to time, provide to Subscriber updates, enhancements, modifications, improvements in and to Converge, which shall all be subject to the terms and conditions of this Agreement. Converge may have system maintenance periods throughout the year that will affect Subscriber's ability to interact with the Website. Converge will use commercially reasonable efforts to notify Subscriber in advance of any disruptions.
Disclaimer of Warranty
SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUBSCRIBER’S USE OF CONVERGE IS AT ITS SOLE RISK, AND CONVERGE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE SUBSCRIBER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE OR SYSTEM INTEGRATION, OR THAT THE OPERATION OF THE SOFTWARE INCLUDED WITHIN CONVERGE WILL BE ERROR FREE. EXCEPT AS PROVIDED HEREIN, THE ENTIRE RISK AND LIABILITY ARISING OUT OF THE USE OF CONVERGE REMAINS WITH SUBSCRIBER, INCLUDING , BUT NOT LIMITED TO, WHEN SUBSCRIBER’S PRACTICES ARE INCONSISTENT WITH THE STANDARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTING (1999) BY THE AMERICAN EDUCATIONAL RESEARCH ASSOCIATION. WITHOUT LIMITING THE FOREGOING, THERE IS NO WARRANTY FOR PERFORMANCE ISSUES (A) CAUSED BY FACTORS OUTSIDE OF CONVERGE’S REASONABLE CONTROL; OR (B) THAT RESULTED FROM ANY ACTION OR INACTION OF SUBSCRIBER OR SUBSCRIBER’S THIRD PARTIES; OR (C) RESULTING FROM SCHEDULED MAINTENANCE PERIODS. SUBSCRIBER MAKES NO WARRANTY AGAINST INFRINGEMENT, AND NEITHER SUBSCRIBER NOR CONVERGE SHALL BE LIABLE TO THE OTHER FOR THE INFRINGEMENT OF ANY PROPRIETARY RIGHTS OF ANOTHER.
Additional Disclaimer
CONVERGE DOES NOT AND CANNOT CONTROL PERFORMANCE OF CONVERGE BASED ON THE FLOW OF DATA TO OR FROM CONVERGE’S NETWORK AND OTHER PORTIONS OF THE INTERNET, WHICH DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT SUBSCRIBER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH CONVERGE WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND AVOID SUCH EVENTS, CONVERGE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, CONVERGE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
Limitation
EXCEPT TO THE EXTENT THE FOLLOWING LIABILITY LIMITATION IS PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL CONVERGE, ITS DEVELOPERS, OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES OR EXPENSES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST OPPORTUNITY, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES, OR PECUNIARY LOSSES, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE USE OF OR INABILITY TO USE CONVERGE, EVEN IF CONVERGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CONVERGE MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) CONVERGE WILL MEET YOUR REQUIREMENTS; (2) SUBSCRIBER USE OF THE CONVERGE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF CONVERGE WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN CONVERGE WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH CONVERGE IS ACCESSED AT SUBSCRIBER’S OWN RISK, AND SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, COMPUTER SYSTEMS AND ANY DEVICE USED TO ACCESS CONVERGE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CONVERGE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
No Liability for Conduct of Third Parties or Other Users
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT CONVERGE PARTIES ARE NOT LIABLE, AND AGREES NOT TO SEEK TO HOLD CONVERGE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH SUBSCRIBER. SUBSCRIBER IS SOLELY RESPONSIBLE FOR ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF CONVERGE. YOU UNDERSTAND THAT CONVERGE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE CONVERGE LMS.
Termination/Cancellation
If Subscriber has materially breached any provision of the Agreement, or if Converge is required to do so by law, Converge has the right to immediately suspend or terminate any Services and licenses provided to the Subscriber under this Agreement. Upon the termination or expiration of this Agreement for any reason, Converge will be under no obligation to refund any fees paid by the Subscriber for Converge. Subscriber agrees that Converge shall not be liable to Subscriber or any third-party for any suspension or termination of said account made in accordance with this Agreement. Termination or Suspension of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also may include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination or Suspension of any Service, Subscriber’s right to use such Service will automatically terminate immediately. Converge will not have any liability whatsoever to Subscriber for any Suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. In the event of termination of this Agreement, Converge may declare all amounts owed Converge to be immediately due and payable and cease performance of all other obligations..
General
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the state of Kentucky, excluding its conflict of laws provision. The parties consent to the exclusive jurisdiction of the courts of the state of Kentucky and the federal courts situated therein in connection with any action arising from or in connection with this Agreement. If any provision of this Agreement is held to be void or contrary to law, such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect.
Electronic Communications
The communications between the Subscriber and Converge may use electronic means, whether the Subscriber visits Converge Properties or sends Converge e-mails, or whether Converge posts notices on the Converge Properties or communicates with Subscriber via e-mail. For contractual purposes, Subscriber (1) consents to receive communications from Converge in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Converge provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Subscriber’s statutory rights.
No Assignment
Neither Subscriber nor Converge may assign this Agreement, or the rights and obligations hereunder, to any third party without the prior express written approval of the other party.
Waiver
No waiver by either Subscriber or Converge of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
Carveout for Affiliate or Purchaser of Assets
Except as provided in this Section, this Agreement may not be assigned or otherwise transferred, nor may any right or obligation hereunder be assigned or transferred, by either party without the express written consent of the other party; provided, however, that either party may, without such consent, assign the agreement and its rights and obligations hereunder to its Affiliate or to a purchaser of all or substantially all of the assets of such party. Any purported assignment in violation of this section shall be void and of no effect. Any permitted assignee shall assume all assigned obligations of its assignor under the Agreement.
Severability
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
Force Majeure
Neither Subscriber nor Converge will be liable to the other, or will be considered to be in breach of this Agreement, on account of any delay or failure to perform as a result of any acts of God, acts of any political entity, or natural disasters, or any other causes or conditions that are beyond such party’s reasonable control. Should any such event occur, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
Not joint venture or partnership
This Agreement shall not be construed to be a joint venture or a partnership between Subscriber and Converge. Each party shall be solely responsible for and shall hold the other harmless for any and all claims for taxes, fees, costs, and workmen’s compensation.
Notice
Any notice required to be given under this Agreement shall be in writing and shall be deemed given if sent by registered or certified mail addressed to the parties as follows or by way of email:
Attn: Tiffaney Lavoie
2373 Palumbo Drive
Lexington, KY 40509
Other Considerations
Attorneys Fees and Expenses
In any action at law or equity to enforce any of the provisions or rights under this Agreement, the unsuccessful party to such litigation shall pay the successful party all costs, expenses and reasonable attorneys’ fees incurred therein by such party. In addition to other remedies provided by law or this Agreement, the parties shall have the right during the term, as the same may be extended, of this Agreement (or as to Paragraph 5(a), for the three (3) years thereafter) to obtain from a court of competent jurisdiction injunctive relief against the breach of this Agreement by the other party.
Third-Party Websites
The Converge Properties may contain links to third-party websites (“THIRD-PARTY CONTENT”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Converge Properties and are subject to separate terms and conditions or privacy policies. Such Third-Party Websites are not under the control of Converge. Converge is not responsible for any Third-Party Websites and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
Subscriber Information
Subscriber hereby permits Converge to use information regarding its schools or district (other than student information) to perform its obligations hereunder and to be used and disclosed to internal and external researchers and other third parties that have executed confidentiality agreements. However, Converge shall seek permission from Subscriber before including such information that is identifiable to the school or district in any publication.
Limited Warranty Inclusion
In the event Converge fails to conform to these warranties, Converge will use its best efforts to correct Converge. If Converge is unable to correct the error after using its best efforts, Converge will refund the unused Subscription fees paid by Subscriber, as depreciated over the Term on a straight line basis, and terminate this Agreement. The limited warranties provided in this Section are void if the failure of Converge results from (a) use of Converge in connection with software or hardware not compatible with Converge or not meeting the technical specifications provided by Converge; (b) improper or inadequate maintenance of Subscriber’s equipment or software; or (c) inadequate Internet connectivity or bandwidth. Subscriber is responsible for the results obtained and decisions made from its use of Converge. Converge may include open source software components and use of such components may be subject to additional terms and conditions.