SharpScholar Terms of Service

Last Updated: October 12, 2013

This website (www.sharpscholar.com) (“Web site“) is operated by SharpScholar (“we“, “us“, or “our”) on its own behalf and on the behalf of all its affiliates.

This page sets out the terms and conditions on which You may access and/use our Web site and/or use our student engagement services provided through our Web site or application (“System“). These Terms of Service, together with the Acceptable Use Policy and the Privacy Policy referred to herein, form a legally binding agreement between You and us (“Agreement“). Please read them carefully before you start to use our Web site or System. By using our Web site or System You indicate that You accept this Agreement and you agree to be bound by it. If You do not agree to the Agreement please do not use our Web site or System. “You” or “Your” is defined as an individual user of the Web site or System such as a student or instructor. Where applicable,“You” or “Your” is also defined as the entity (such as such as a school, university or college) where the student is enrolled or the instructor is employed or contracted if such use is accessing and using the Web site or System on behalf of or through such entity. Users using the System on behalf of a school, university or college (or other such entity) agree that they do so with the appropriate permissions and authority.

You may not access the System if you are our direct competitor, except with our prior written consent. In addition, You may not access the System for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.

We may change these Terms of Service, the Acceptable Use Policy or the Privacy Policy from time to time, without notice. Your continued use of our Web site or System will amount to acceptance to such changes.

1. YOUR PASSWORD AND ACCOUNT

1.1 Registered Users. In order to gain access to the System, you are required to register for an account that is accessed by a username and password (“Account“). In registering for Your Account, You agree (i) that the information You provide to us in connection with your registration will be current, complete and accurate, (ii) not to choose a user name that violates any law or the intellectual property rights of others, or is offensive; provided that we reserves the right to reject the use of any user name for any reason or no reason, (iii) not to transfer, sell, convey or assign the right to use Your Account to any third party without the prior written consent of us and (iv) not to permit any third party to use Your user name and password to access your Account or the System. You further agree that you are responsible for the conduct of any party that uses Your Account, whether or not authorized by You, and for any breach of the security of the System related to the use of your user name and/or password.

1.2 Grant of Rights. Upon registration and subject to the payment of any applicable fees, we grant You the limited, revocable, non-transferable, non-exclusive right to access and use the System (including any downloaded applications that permit interaction with the System) for the term provided on the Order Form or Web Enrollment and subject to any additional terms contained therein.

1.3 Web Enrollment and Order Forms. The right to access to use the System may be done through a subscription for service on the Web site (“Web Enrollment“) or by an agreement or order form (“Order Form“) that incorporates by reference the Agreement.

2. TERMINATION OF USE

2.1 Suspension or Termination. You agree that we may, at our sole discretion, suspend or terminate Your access to all or part of our Web site and System with or without notice and for any reason, including, without limitation, breach of these Terms of Service or the Acceptable Use Policy. Upon suspension or termination, Your right to use the System will immediately cease, and we reserve the right to remove or delete any information that you may have on file with us, including any Account information or User Content.

2.2 Effect of Termination. In the event of any termination or expiration:

(i) All licenses and rights we granted to You hereunder shall immediately terminate;

(ii) Each party shall return to the other Confidential Information; and

(iii)The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.

3. SYSTEM FEES PAYMENT AND REFUND POLICY

3.1 Term of Purchased User Subscriptions. In consideration of the right to access and use the System, you agree to pay the applicable fees (“System Fees“) as specified in an Order Form or Web Enrollment. User subscriptions purchased by You, or for others, commence on the start date specified in the applicable Order Form or Web Enrollment and continue for the subscription term specified therein. System Fees are billed in advance and are non-refundable except as set out herein. A valid credit card or PayPal account is required for paying the System Fees. You will be billed as provided in an Order Form or Web Enrollment for the applicable System Fee. All System Fees are exclusive of all sales, excise or use taxes, or any levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding taxes on the income of SharpScholar.

3.2 User Subscriptions. Unless otherwise specified in the applicable Order Form or Web Enrollment, (i) the right to access and use the System is purchased as user subscriptions and may be accessed by no more than the specified number of users, (ii) additional user subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions there under, prorated for the remainder of the subscription term in effect at the time the additional user subscriptions are added, and (iii) the added user subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated users only and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the System.

3.3 Refunds. SharpScholar will provide refunds for subscriptions purchased directly by You for a period of 2 weeks subsequent to initial activation. Upon granting of a refund, Your access to the System will be immediately terminated. Refund requests are to be sent to info@sharpscholar.com. There is no refund on services rendered.

4. PRIVACY

4.1 Privacy. Use of the Web Site or System is also governed by our Privacy Policy which is hereby incorporated into and made a part of these Terms of Service by this reference as though fully set forth herein.

5. AVAILABILITY

5.1 Availability. While we endeavor to ensure that our System is normally available 24 hours a day, we will not be liable if for any reason the our System (or any part of it) is unavailable at any time or for any period.

5.2 Suspension. Access to System may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control.

6. YOUR CONDUCT

6.1 Acceptable Use Policy. When using our Web site or System, you must comply with the provisions of our Acceptable Use Policy.

6.2 Data Storage. Any data or content you store on our Web site or System must comply with the provisions of our Acceptable Use Policy and is subject to any data storage limit we notify to you of from time to time. We reserve the right to charge for data storage which exceeds our data storage limit.

6.3 Restrictions. You agree that will not directly or indirectly: (i) modify or create any derivative work of the System, documentation or service; (ii) sublicense, sell, lend, rent, lease, give, transfer, assign or otherwise dispose of all or any portion of the System; (iii) reverse engineer, disassemble or decompile the System or attempt to discover or recreate the source code to the System; or (iv) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the System or documentation.

7. LINKING TO OUR SITE

7.1 Linking to our Web site. You may link to our Web site’s home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

7.2 Link Ownership. You must not establish a link from any website that is not owned by You or your employer.

7.3 No Framing. Our Web site must not be framed on any other website, nor may you create a link to any part of our Web site other than the home page. The website from which You are linking must not display or link to any unlawful, harassing, defamatory, abusive, threatening, harmful, obscene, profane, sexually oriented, racially offensive or otherwise objectionable material. We reserve the right to withdraw linking permission without notice.

8. LINKING FROM OUR SITE

8.1 Third Party Links. Where our Web site contains links to other sites and resources provided by third parties, these links are provided for Your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from Your use of them.

9. CONFIDENTIALITY

9.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include information related to the System and all Web Enrollment/Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

9.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Web Enrollment/Order Form to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent.

9.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

10. RELIANCE ON INFORMATION POSTED

10.1 Our Web Site Content. We cannot offer any guarantee that any information that is posted on our Web site or System is complete, accurate or up to date. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials or information by any visitor to Our Web site or System, or by anyone who may be informed of any of its contents.

11. USER CONTENT

11.1 No Other Interest. We acknowledge and agree that we obtain no right, title or interest from You (or your employer or licensors) in or to any content that you upload, post, transmit or display on or through Our Web site or System including any intellectual property rights which subsist in that content (“User Content”). You agree that you are responsible for protecting and enforcing those rights and that we have no obligation to do so on Your behalf.

11.2 User Content License. By uploading, posting or displaying User Content you grant us, our partners, and affiliates a non-exclusive, perpetual, royalty-free right to use, reproduce, modify, publish, distribute, perform, display and transmit the User Content for the sole purpose of providing services to You. In addition, we shall be permitted to use anonymized User Content both during and after the term of this Agreement to optimize our service and for any other lawful purpose. In no event will such data include any personally identifiable information.

11.3 User Content Compliance. Any User Content posted or shared by You on our Web site or System must comply with Our Acceptable Use Policy.

11.4 Necessary Rights. It is a condition of the Agreement that you have all the necessary rights and consents to grant the licenses set out at in section 11.2 and to upload User Content to our Web site. In particular, you must ensure that you have obtained any necessary consents, including parental consents, relating to the use of images of minors and/or vulnerable adults.

11.5 User Content. It is a condition of the Agreement that Your User Content does not contain any material which is the confidential information of any third party or which is defamatory, obscene or otherwise unlawful.

11.6 Removal of User Content. We have the right at our sole discretion to remove any User Content that, we feel in our judgment does not comply with the Agreement or violates any third party copyrights or trademarks. We are not responsible for any delay or failure in removing such User Content. If You post User Content that we choose to remove, You hereby consent to such removal, and consent to waive any claim against us. We do not monitor all content uploaded, posted or published on our Web site or System. If You believe that any content uploaded, posted or published on our Web site or System is defamatory and/or breaches the Agreement or infringes your intellectual property rights please contact us at info@sharpscholar.com. We may require You to provide additional information to help us assess your concern and correctly identify information to be removed.

11.7 Indemnity. You agree to indemnify and hold SharpScholar, and its affiliates, officers, agents, partners, and employees, harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of User Content you submit, post to, email, or otherwise transmit through the Web site or System, your use of the Web site or System or your breach of the Agreement.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 Our Intellectual Property. We are the owner or a licensee of all intellectual property rights in Our Web site and System. All such rights are reserved. Nothing in these terms and conditions gives You a right to use any of our trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of our intellectual property, in whole or in part, except as is expressly permitted herein.

12.2 Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use, copy, modify and incorporate into the Web Site or the System any suggestions, enhancement requests, recommendations or other feedback provided by You, relating to the operation of the Web site or System.

13. INFRINGEMENT INDEMNITY

13.1 SharpScholar Indemnity. SharpScholar shall, subject to section 11.7, defend You and Your officers, directors and employees against any claim that the System infringes any Canadian or United States patent effective as of the date that your Order Form or Web Enrollment is accepted by us, copyright or trade-mark, and shall indemnify You for any amounts awarded against You in judgment or settlement of such claims, provided that:

(i) SharpScholar is given prompt notice of any such claim;

(ii) You provides reasonable co-operation to SharpScholar in the defense and settlement of such claim, at our expense; and

(iii) SharpScholar is given sole authority to defend or settle the claim.

13.2 SharpScholar Rights. In the defense or settlement of any claim, SharpScholar may procure the right for You to continue using the System, replace or modify the System so that they become non-infringing or, if such remedies are not reasonably available, terminate Order Form or Web Enrollment on 2 business days’ notice to You and refund to You a prorated amount equal to the System Fees covering the whole months that would have remained, absent such early termination without any additional liability or obligation to the You.

13.3 Exclusions. In no event shall SharpScholar, its employees, agents and sub-contractors be liable to You under section 13.1 to the extent that the alleged infringement is based on:

(i) A modification of the System by anyone other than us;

(ii) Your use of the System in a manner contrary to the instructions given to You by us or in contravention of the terms of the Agreement;

(iii) The combination, operation or use of the System with software, hardware, any User Content, other materials or networks not furnished, approved or certified in writing by us or set forth in the applicable documentation, if such infringement would have been avoided without the presence of such software, hardware, User Content, materials or networks; or

(iv) Your use of the System after notice of the alleged or actual infringement from SharpScholar or any appropriate authority.

13.4 Sole Remedy. This Section 13 states Your sole and exclusive rights and remedies, and SharpScholar’s (including the SharpScholar affiliates’, employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright or trademark.

14. WARRANTY, DISCLAIMERS AND LIMITATIONS OF LIABILITY

14.1 Functionality Warranty. We warrants that the System will operate in substantial conformity with the then current version of the applicable documentation provided by us.

14.2 Disclaimer of Warranty and Limitations of Liability. WITH THE EXCEPTION OF THE WARRANTY IN SECTION 14.1, YOU AGREE THAT YOUR ACCESS TO THE SharpScholar WEB SITE AND YOUR USE OF THE SYSTEM IS AT YOUR OWN RISK. NEITHER SharpScholar, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS WARRANT THAT THE USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SYSTEM OR AS TO THE ACCURACY, RELIABILITY, SUITABILITY OR CONTENT OF THE SYSTEM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SharpScholar OR THROUGH OR FROM THE SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. THE SYSTEM IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AUDIENCE, AND NON-INFRINGEMENT. IN NO EVENT WILL SharpScholar OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF SharpScholar HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF YOUR USE OF OR INABILITY TO ACCESS AND USE THE WEB SITE OR THE SYSTEM, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOST BUSINESS, LOST DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO SharpScholar’S RECORDS, PROGRAMS, SERVICES OR SYSTEMS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS SharpScholar’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING OR ANYTHING ELSE HEREIN CONTAINED, IN NO EVENT WILL SharpScholar BE LIABLE TO YOU FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL SYSTEM FEES PAID BY YOU FOR THE RIGHT TO ACCESS AND USE THE SYSTEM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION. This Section 14 will apply to the maximum extent permitted under applicable law.

15. NOTICES

15.1 Notices. All notices given by you to us must be given to SharpScholar at info@sharpscholar.com. We may give notice to you at either the e-mail or postal address you provide to us on your Order Form or Web Enrollment. Notice will be deemed received and properly served immediately when posted on our Web site, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

16. TRANSFER OF RIGHTS AND OBLIGATIONS

16.1 Assignment. The Agreement between you and us is binding on you and us and on our respective successors and assigns. You may not transfer, assign, charge any of your rights or obligations arising under the Agreement, without our prior written consent. We may transfer, assign, charge, sub-contract or otherwise dispose of a contract, or any of our rights or obligations arising under it, at any time.

17. MARKETING.

17.1 Marketing. During the term of this Agreement, You hereby agrees that SharpScholar may include Your name and logo as a customer who uses the System in our marketing materials. You and SharpScholar agree that during the term of this Agreement they will collaborate on press releases and other joint communications surrounding Your use of the System. During the term of this Agreement, SharpScholar may request You to serve as a reference, participate in analyst calls, provide statements for marketing purposes, and/or develop case studies on Your success in using the System. You agree to respond within a reasonable amount of time to our request for assistance with the aforementioned.

18. EVENTS OUTSIDE OUR CONTROL

18.1 Force Majeure. Notwithstanding any other provision of this Agreement, we shall not be deemed in default of this Agreement for failure to fulfill our obligations when due to causes beyond its reasonable control.

19. SEVERABILITY

19.1 Severability. If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.

20. COMPLIANCE WITH LAWS

20.1 Compliance with Laws. Each party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction in connection with its activities under the Agreement.

21. WAIVER

21.1 No Waiver. No waiver by us, in exercising any right shall operate as a waiver of any other right or of that same right at a future time; nor shall any delay in exercise of any power or right be interpreted as a waiver.

22. ENTIRE AGREEMENT

22.1 Entire Agreement. These terms and conditions and any document expressly referred to in them represent the entire agreement between us and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.

23. GOVERNING LAW

23.1 Governing Law. If You reside in Canada and use the System in Canada, this Agreement is to be construed under the laws of the Province of Ontario. Otherwise, this Agreement is to be construed under the laws of the State of New York, excluding any body of law governing conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. In the event of a dispute arising out of or in connection with the terms of this Agreement between you and us, then you agree to attempt to settle the dispute by engaging in good faith negotiations with us in a process of mediation before commencing arbitration or litigation.

24. RELATIONSHIP OF PARTIES

24.1 Independent Contractor. Nothing in this agreement shall create a partnership, joint venture or agency or the relationship of employer and employee between us.

25. THIRD PARTY BENEFICIARIES

25.1 No Third Party Beneficiaries. The Agreement is not for the benefit of any third parties. It may only be enforced by You and us.