Terms of Service - last updated 9/30/2024
TERMS OF SERVICE AGREEMENT
This is a legal agreement (the "Agreement"), by and between EduTrak LLC, 8011 34th Ave So, Suite 305, Bloomington, MN 55426, (hereinafter "EduTrak" ), and the organization that subscribes for and registers to use the services provided by EduTrak (hereinafter "You"). This Agreement is effective as of the moment You indicate acceptance during the registration process. [Assumes online acceptance of Agreement.]
EduTrak WILL PROVIDE ITS SERVICES TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT DURING THE REGISTRATION OF YOUR ACCOUNT. PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY.
1. Provision of the Services. During the term of this Agreement, EduTrak will provide You with the online payment services You order during the process of registering with EduTrak (the "Services"). These Services allow You to accept online payments and process online and back office registrations for classes, meetings and events. They include functionality such as student registration, credit card processing, attendee management, financial reporting, waitlist handling and instructor management among related administrative services as determined by EduTrak. Subject to the provisions of this Agreement, during the term of this Agreement, You shall have only a non-exclusive, non-transferable, limited right to access and internally use the Services. You acknowledge and agree that EduTrak reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Services and the format and manner in which they are provided to You.
Your child's eligibility information for free or reduced priced meals is private data. However, federal law allows a school to share your child's eligibility with federal and state education, health, and nutrition programs for which your child may qualify. Food Service needs your permission to share your child's free and reduced eligibility status to receive a reduction or waiver of various fees for example Athletic or Activity Participation Fees, Athletic Passes, or Musical Instrument Rental Fees. Food Service has permission to share my child's meal eligibility information with other departments.
2. Use of the Services. You agree that neither You nor any registrant or potential registrant to an event or class organized by You ("Registrant") will use the Services in violation of applicable law, or to:
a. Disseminate or transmit any material that is unlawful, harassing, libelous, defamatory, false , misleading, abusive, threatening, harmful, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or harms minors in any way;
b. Disseminate or transmit any material that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
c. Disseminate or transmit any material that infringes any rights of patent, trademark or service mark, trade secret, copyright, right of publicity, or any other proprietary right (the "Proprietary Rights") of any party;
d. Disseminate or transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, surveys, contests, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
e. Impersonate or use the identity of another party, or falsely state or otherwise misrepresent an affiliation with a party;
f. Engage in any activities or manipulate identifying material to misrepresent the origin of content;
g. Interfere with or otherwise limit the use of the Services or EduTrak's networks by other users; or collect, compile, or store personal information about other users of the Services or EduTrak's networks;
h. Disrupt or interfere with the security of, overload the capacity of, or otherwise cause harm to, the Services or EduTrak's networks; accounts; usernames and passwords; servers; or other networks connected to or accessible through the Services or any affiliated or linked sites;
i. Operate a service bureau or provide services to another party;
i. Disseminate or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
j. Disseminate or transmit any material that otherwise may: (i) constitute a criminal offense; (ii) give rise to civil liability; or (iii) violate applicable law, rule or regulation.
3. Ownership. You acknowledge and agree that EduTrak is the exclusive owner of all right, title, and interest in and to any and all materials, items, information, content, software, and technology related to the Services and all components thereof (the "EduTrak Materials"), including without limitation, any and all related Proprietary Rights. You hereby acknowledge and agree that You have no ownership or other interest in the EduTrak Materials or any related Proprietary Rights.. The Services may only be used by You as expressly authorized herein. All rights not specifically granted by EduTrak hereunder are reserved by EduTrak. You shall not modify, translate, reverse engineer, disassemble, decompile, reformat, create derivative works of, or otherwise attempt to access or learn the source code or underlying technology related to the Services or the EduTrak Materials,
4. Registration Data; Confidential Information.
4.1 Registration Information. In order to receive the Services, You will receive certain registration information, including an Employee ID and password. You acknowledge and agree that You are responsible for maintaining the confidentiality of your Employee ID and password, and for all uses of your password (including but not limited to all materials disseminated or transmitted under your password, and/or any additional Employee ID and password combinations You subsequently create.). EduTrak shall have the right to require You to change your password at any time. You agree to immediately notify EduTrak of any unauthorized use of your password or any other breach of security. EduTrak has no obligation to inquire about the authority of anyone using your password or other information that can be used to identify You, including a use to request or change the Services. You agree to allow EduTrak to store and use your contact information, including without limitation, names, phone numbers, and e-mail addresses.
4.2 Confidential Information. "Confidential Information" includes any and all information disclosed by one party to the other, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary. Confidential Information does not include information that the receiving party can clearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed by the receiving party without the use of the disclosing party's Confidential Information. You agree that the concepts, systems, and methodologies used by EduTrak to provide the Services constitute Confidential Information of EduTrak. EduTrak agrees that all personally identifiable information with respect to You and your Registrants (including Registrants' names, addresses and credit card information) constitutes your Confidential Information. Each party agrees that, except as expressly authorized by this Agreement, or as necessary for EduTrak to provide the Services, it will make no use of Confidential Information of the other party for any purpose, will not disclose Confidential Information of the other party to any third party, and will protect and treat all Confidential Information of the other party with the same degree of care as it uses to protect its own confidential information of like importance, but in no event less than reasonable care. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a governmental body or law enforcement agency provided that, promptly upon receiving any such request and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure in order that the other party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
5. Availability. Your ability to access or use the Services may from time to time be interrupted, limited, restricted, or prevented as a result of maintenance, upgrades and repairs, problems with the Internet, or the failure of telecommunications links or equipment. EduTrak shall have no liability for any inability to use the Services which is caused by You or any of your hardware, software, or systems. EduTrak may at any time modify the Services; including without limitation, making modifications to appearance, functionality, presentation of data and information, manner of access or use, or the addition or deletion of information or links to other websites.
6. Security. EduTrak uses commercially reasonable efforts to provide security for the data that is processed through the use of the Services and makes periodic backups of such data. EduTrak makes no physical backup of any data. You are solely responsible for making physical backups of any and all data You process or use in connection with the Services.
7. Disclaimer of Warranties. THE SERVICES ARE PROVIDED TO YOU "AS IS, WITH ALL DEFECTS" AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EduTrak EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES, AND THE ACCURACY OF THE INFORMATION AND CONTENT AVAILABLE THROUGH THE USE OF THE SERVICES. EduTrak EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES THAT (I) THE SERVICES WILL OPERATE IN OR BE PROVIDED IN AN ERROR FREE OR UNINTERRUPTED MANNER; (II) THE WEBSITES AND THE ONLINE SERVER THAT MAKES THE WEBSITES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS; (III) THE SERVICES WILL SATISFY YOUR REQUIREMENTS; (IV) THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (V) EduTrak WILL PREVENT THE UNAUTHORIZED DISCLOSURE OF, UNAUTHORIZED USE OF, UNAUTHORIZED ACCESS TO, MISAPPROPRIATION OF, LOSS OF, OR ALTERATION OF ANY DATA OR INFORMATION; OR (VI) ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED. EduTrak DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE SERVICES WILL SATISFY, OR ENABLE YOU TO SATISFY, THE REQUIREMENTS OF ANY GOVERNMENT AGENCY, ASSOCIATION, OR OTHER ORGANIZATION. NOTHING IN THIS AGREEMENT OR IN ANY ORAL OR WRITTEN DESCRIPTION OF THE SERVICES SHALL CONSTITUTE A REPRESENTATION OR WARRANTY WITH RESPECT TO THE SERVICES.
8. Limitations of Liability. EduTrak SHALL NOT BE LIABLE TO YOU FOR HARM CAUSED BY OR RELATED TO THE SERVICES OR YOUR INABILITY TO UTILIZE THE SERVICES. EduTrak. SHALL NOT BE LIABLE TO YOU FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EduTrak UNDER ANY THEORY OF LAW SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE THIRTY DAY PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
9. Indemnification.
9.1 Indemnification by EduTrak . EduTrak shall indemnify You and defend at its expense any third party claim, suit or proceeding (each, a "Claim") brought against You by any third party to the extent such Claim is based upon a claim that the Services infringe such third party's Proprietary Rights that are enforceable in the United States, and EduTrak shall pay costs and damages finally awarded against You by a court of competent jurisdiction as a result of any such claim or payable by You pursuant to a settlement agreement to which EduTrak agrees in writing in settlement of such a Claim. If the Services are, or in EduTrak's opinion, might be held to infringe as set forth above, EduTrak may, at its option, (a) replace or modify the Services so as to avoid infringement, or (b) procure the right for You to continue the use of the Services, or (c) terminate this Agreement and pay a refund to You with respect to the affected portion of the Services for the unexpired term of this Agreement, not to exceed thirty (30) days.
9.2 Indemnification by You. You shall indemnify EduTrak and defend at your expense any Claim brought against EduTrak by any third party to the extent such Claim arises out of or relates to your use of, misuse of, or failure to use the Services, including without limitation: (a) your failure to perform any of your obligations, or your violation of any of the terms and conditions of this Agreement; (b) your infringement or violation of Proprietary Rights or privacy rights; (c) security breaches with respect to data that is processed through the use of the Services; or (d) any action taken by EduTrak as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred.
9.3 Process. A party seeking indemnification shall (a) promptly notify the other party in writing of a Claim; (b) promptly give the other party the sole right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of the indemnifying party's own choosing; and (c) give reasonable assistance and cooperation for the defense of same.
10. Suspension. Your ability to access and use the Services may be restricted, suspended, or terminated by EduTrak without notice in the event EduTrak determines, in its sole discretion, that You have failed to perform any of your obligations, or You are in violation of any of the terms and conditions of this Agreement, or are engaging in conduct or activities that may otherwise be harmful to EduTrak. No refunds will be provided as a result of any such restriction, suspension, or termination.
11. Term and Termination. The term of this Agreement shall commence as of the moment You indicate acceptance during the registration process, and shall continue thereafter until either party provides the other party with written notice of termination. EduTrak shall have the right to immediately terminate this Agreement if You fail to perform any of your obligations, or are in violation of any of the terms and conditions of this Agreement, and You do not cure such failure within ten (10) days after EduTrak has provided notice of such failure. Upon termination of this Agreement, all of Your rights to access and use the Services shall terminate immediately. EduTrak shall have no obligation to return any materials, items, or information to You until such time as any and all outstanding amounts have been paid to EduTrak.
12. Other Software. If EduTrak makes any software available to You in connection with the Services, EduTrak shall be the exclusive owner of all right, title, and interest in and to such software; including without limitation, any and all related Proprietary Rights. In the absence of any separate license agreement governing the your use of such software, (a) You shall be deemed to have only a revocable, non-transferable, non-sublicensable, and non-exclusive right to internally use such software solely to enable You to use the Services as provided by EduTrak during the term of this Agreement, and (b) SUCH SOFTWARE SHALL BE PROVIDED TO YOU "AS IS, WITH ALL DEFECTS" AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
13. Assignment. Neither this Agreement nor any of your rights and obligations hereunder may be assigned, subcontracted or otherwise transferred by You without EduTrak's prior written consent. Any attempted assignment, subcontract or transfer in contravention of this Section will be void and will be considered a material breach of this Agreement. This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
14. Suggestions. Any and all comments, suggestions, feedback and materials that You make, provide, or send to EduTrak shall become EduTrak's exclusive property; and You hereby transfer, sell, and assign to EduTrak all of your right, title, and interest in and to any such comments, suggestions, feedback, and materials, including without limitation, any and all related Proprietary Rights.
15. Relationship of the Parties. This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever.
16. Notices. Except to the extent that this Agreement provides that such communication will be made through your account portal page, all written communications to You will be deemed delivered if sent to the contact points provided to EduTrak during your registration for the Services, or to such other contact points as you provide in writing. You must include a valid e-mail address as one of your contact points. All written communications regarding legal notices to EduTrak must be mailed by certified mail or sent via a nationally-recognized carrier which provides proof of delivery (e.g., Federal Express or UPS) to 700 Twelve Oaks Center Drive, Suite 162, Minneapolis, MN 55391.
17. Severability. If any provision of this Agreement is held unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or the applicable court decision.
18. Force Majeure. If either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, the substantial inoperability of the Internet, or other event beyond the reasonable control of the affected party (a "Force Majeure Event"), all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure Event.
19. Waiver. Any waiver by EduTrak of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. Any waiver must be in writing. Failure by EduTrak to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive EduTrak of the right to insist upon strict adherence to that term or any other term of this Agreement.
20. Governing Law. This Agreement shall be governed by the laws of the State of Minnesota, without giving effect to its conflicts of law principles. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree and consent to the exclusive jurisdiction of, and venue in, the federal and state courts in Hennepin County, Minnesota.
21. Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
22. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement. The Parties have agreed that this Agreement as well as any notice, document or instrument relating to it be drawn up in English only.
23. Amendment. EduTrak may revise this Agreement from time to time by posting a new version on the EduTrak website. Revised terms will become effective thirty (30) days after posting thereof (the "Revision Date"). You waive any right to notice of revised terms other than through the EduTrak website, and such waiver will remain in force even if EduTrak does provide notice by e-mail or another medium. Your continued use of the Services after any Revision Date will confirm acceptance of revised terms. This Agreement may not be revised or amended in any other way, except through a written contract executed by authorized representatives of both parties. EduTrak may provide notices and information to You via e-mail, but no e-mail exchange will amend this Agreement, even if such messages purport to do so.
BY CHECKING THE BOX NEXT TO THE TEXT "I AGREE TO THESE TERMS OF SERVICE.", I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THIS AGREEMENT, AND THAT I AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
This is a legal agreement (the "Agreement"), by and between EduTrak LLC, 8011 34th Ave So, Suite 305, Bloomington, MN 55426, (hereinafter "EduTrak" ), and the organization that subscribes for and registers to use the services provided by EduTrak (hereinafter "You"). This Agreement is effective as of the moment You indicate acceptance during the registration process. [Assumes online acceptance of Agreement.]
EduTrak WILL PROVIDE ITS SERVICES TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT DURING THE REGISTRATION OF YOUR ACCOUNT. PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY.
1. Provision of the Services. During the term of this Agreement, EduTrak will provide You with the online payment services You order during the process of registering with EduTrak (the "Services"). These Services allow You to accept online payments and process online and back office registrations for classes, meetings and events. They include functionality such as student registration, credit card processing, attendee management, financial reporting, waitlist handling and instructor management among related administrative services as determined by EduTrak. Subject to the provisions of this Agreement, during the term of this Agreement, You shall have only a non-exclusive, non-transferable, limited right to access and internally use the Services. You acknowledge and agree that EduTrak reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Services and the format and manner in which they are provided to You.
Your child's eligibility information for free or reduced priced meals is private data. However, federal law allows a school to share your child's eligibility with federal and state education, health, and nutrition programs for which your child may qualify. Food Service needs your permission to share your child's free and reduced eligibility status to receive a reduction or waiver of various fees for example Athletic or Activity Participation Fees, Athletic Passes, or Musical Instrument Rental Fees. Food Service has permission to share my child's meal eligibility information with other departments.
2. Use of the Services. You agree that neither You nor any registrant or potential registrant to an event or class organized by You ("Registrant") will use the Services in violation of applicable law, or to:
a. Disseminate or transmit any material that is unlawful, harassing, libelous, defamatory, false , misleading, abusive, threatening, harmful, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or harms minors in any way;
b. Disseminate or transmit any material that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
c. Disseminate or transmit any material that infringes any rights of patent, trademark or service mark, trade secret, copyright, right of publicity, or any other proprietary right (the "Proprietary Rights") of any party;
d. Disseminate or transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, surveys, contests, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
e. Impersonate or use the identity of another party, or falsely state or otherwise misrepresent an affiliation with a party;
f. Engage in any activities or manipulate identifying material to misrepresent the origin of content;
g. Interfere with or otherwise limit the use of the Services or EduTrak's networks by other users; or collect, compile, or store personal information about other users of the Services or EduTrak's networks;
h. Disrupt or interfere with the security of, overload the capacity of, or otherwise cause harm to, the Services or EduTrak's networks; accounts; usernames and passwords; servers; or other networks connected to or accessible through the Services or any affiliated or linked sites;
i. Operate a service bureau or provide services to another party;
i. Disseminate or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
j. Disseminate or transmit any material that otherwise may: (i) constitute a criminal offense; (ii) give rise to civil liability; or (iii) violate applicable law, rule or regulation.
3. Ownership. You acknowledge and agree that EduTrak is the exclusive owner of all right, title, and interest in and to any and all materials, items, information, content, software, and technology related to the Services and all components thereof (the "EduTrak Materials"), including without limitation, any and all related Proprietary Rights. You hereby acknowledge and agree that You have no ownership or other interest in the EduTrak Materials or any related Proprietary Rights.. The Services may only be used by You as expressly authorized herein. All rights not specifically granted by EduTrak hereunder are reserved by EduTrak. You shall not modify, translate, reverse engineer, disassemble, decompile, reformat, create derivative works of, or otherwise attempt to access or learn the source code or underlying technology related to the Services or the EduTrak Materials,
4. Registration Data; Confidential Information.
4.1 Registration Information. In order to receive the Services, You will receive certain registration information, including an Employee ID and password. You acknowledge and agree that You are responsible for maintaining the confidentiality of your Employee ID and password, and for all uses of your password (including but not limited to all materials disseminated or transmitted under your password, and/or any additional Employee ID and password combinations You subsequently create.). EduTrak shall have the right to require You to change your password at any time. You agree to immediately notify EduTrak of any unauthorized use of your password or any other breach of security. EduTrak has no obligation to inquire about the authority of anyone using your password or other information that can be used to identify You, including a use to request or change the Services. You agree to allow EduTrak to store and use your contact information, including without limitation, names, phone numbers, and e-mail addresses.
4.2 Confidential Information. "Confidential Information" includes any and all information disclosed by one party to the other, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary. Confidential Information does not include information that the receiving party can clearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed by the receiving party without the use of the disclosing party's Confidential Information. You agree that the concepts, systems, and methodologies used by EduTrak to provide the Services constitute Confidential Information of EduTrak. EduTrak agrees that all personally identifiable information with respect to You and your Registrants (including Registrants' names, addresses and credit card information) constitutes your Confidential Information. Each party agrees that, except as expressly authorized by this Agreement, or as necessary for EduTrak to provide the Services, it will make no use of Confidential Information of the other party for any purpose, will not disclose Confidential Information of the other party to any third party, and will protect and treat all Confidential Information of the other party with the same degree of care as it uses to protect its own confidential information of like importance, but in no event less than reasonable care. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a governmental body or law enforcement agency provided that, promptly upon receiving any such request and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure in order that the other party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
5. Availability. Your ability to access or use the Services may from time to time be interrupted, limited, restricted, or prevented as a result of maintenance, upgrades and repairs, problems with the Internet, or the failure of telecommunications links or equipment. EduTrak shall have no liability for any inability to use the Services which is caused by You or any of your hardware, software, or systems. EduTrak may at any time modify the Services; including without limitation, making modifications to appearance, functionality, presentation of data and information, manner of access or use, or the addition or deletion of information or links to other websites.
6. Security. EduTrak uses commercially reasonable efforts to provide security for the data that is processed through the use of the Services and makes periodic backups of such data. EduTrak makes no physical backup of any data. You are solely responsible for making physical backups of any and all data You process or use in connection with the Services.
7. Disclaimer of Warranties. THE SERVICES ARE PROVIDED TO YOU "AS IS, WITH ALL DEFECTS" AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EduTrak EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES, AND THE ACCURACY OF THE INFORMATION AND CONTENT AVAILABLE THROUGH THE USE OF THE SERVICES. EduTrak EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES THAT (I) THE SERVICES WILL OPERATE IN OR BE PROVIDED IN AN ERROR FREE OR UNINTERRUPTED MANNER; (II) THE WEBSITES AND THE ONLINE SERVER THAT MAKES THE WEBSITES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS; (III) THE SERVICES WILL SATISFY YOUR REQUIREMENTS; (IV) THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (V) EduTrak WILL PREVENT THE UNAUTHORIZED DISCLOSURE OF, UNAUTHORIZED USE OF, UNAUTHORIZED ACCESS TO, MISAPPROPRIATION OF, LOSS OF, OR ALTERATION OF ANY DATA OR INFORMATION; OR (VI) ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED. EduTrak DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE USE OF THE SERVICES WILL SATISFY, OR ENABLE YOU TO SATISFY, THE REQUIREMENTS OF ANY GOVERNMENT AGENCY, ASSOCIATION, OR OTHER ORGANIZATION. NOTHING IN THIS AGREEMENT OR IN ANY ORAL OR WRITTEN DESCRIPTION OF THE SERVICES SHALL CONSTITUTE A REPRESENTATION OR WARRANTY WITH RESPECT TO THE SERVICES.
8. Limitations of Liability. EduTrak SHALL NOT BE LIABLE TO YOU FOR HARM CAUSED BY OR RELATED TO THE SERVICES OR YOUR INABILITY TO UTILIZE THE SERVICES. EduTrak. SHALL NOT BE LIABLE TO YOU FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EduTrak UNDER ANY THEORY OF LAW SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE THIRTY DAY PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
9. Indemnification.
9.1 Indemnification by EduTrak . EduTrak shall indemnify You and defend at its expense any third party claim, suit or proceeding (each, a "Claim") brought against You by any third party to the extent such Claim is based upon a claim that the Services infringe such third party's Proprietary Rights that are enforceable in the United States, and EduTrak shall pay costs and damages finally awarded against You by a court of competent jurisdiction as a result of any such claim or payable by You pursuant to a settlement agreement to which EduTrak agrees in writing in settlement of such a Claim. If the Services are, or in EduTrak's opinion, might be held to infringe as set forth above, EduTrak may, at its option, (a) replace or modify the Services so as to avoid infringement, or (b) procure the right for You to continue the use of the Services, or (c) terminate this Agreement and pay a refund to You with respect to the affected portion of the Services for the unexpired term of this Agreement, not to exceed thirty (30) days.
9.2 Indemnification by You. You shall indemnify EduTrak and defend at your expense any Claim brought against EduTrak by any third party to the extent such Claim arises out of or relates to your use of, misuse of, or failure to use the Services, including without limitation: (a) your failure to perform any of your obligations, or your violation of any of the terms and conditions of this Agreement; (b) your infringement or violation of Proprietary Rights or privacy rights; (c) security breaches with respect to data that is processed through the use of the Services; or (d) any action taken by EduTrak as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred.
9.3 Process. A party seeking indemnification shall (a) promptly notify the other party in writing of a Claim; (b) promptly give the other party the sole right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of the indemnifying party's own choosing; and (c) give reasonable assistance and cooperation for the defense of same.
10. Suspension. Your ability to access and use the Services may be restricted, suspended, or terminated by EduTrak without notice in the event EduTrak determines, in its sole discretion, that You have failed to perform any of your obligations, or You are in violation of any of the terms and conditions of this Agreement, or are engaging in conduct or activities that may otherwise be harmful to EduTrak. No refunds will be provided as a result of any such restriction, suspension, or termination.
11. Term and Termination. The term of this Agreement shall commence as of the moment You indicate acceptance during the registration process, and shall continue thereafter until either party provides the other party with written notice of termination. EduTrak shall have the right to immediately terminate this Agreement if You fail to perform any of your obligations, or are in violation of any of the terms and conditions of this Agreement, and You do not cure such failure within ten (10) days after EduTrak has provided notice of such failure. Upon termination of this Agreement, all of Your rights to access and use the Services shall terminate immediately. EduTrak shall have no obligation to return any materials, items, or information to You until such time as any and all outstanding amounts have been paid to EduTrak.
12. Other Software. If EduTrak makes any software available to You in connection with the Services, EduTrak shall be the exclusive owner of all right, title, and interest in and to such software; including without limitation, any and all related Proprietary Rights. In the absence of any separate license agreement governing the your use of such software, (a) You shall be deemed to have only a revocable, non-transferable, non-sublicensable, and non-exclusive right to internally use such software solely to enable You to use the Services as provided by EduTrak during the term of this Agreement, and (b) SUCH SOFTWARE SHALL BE PROVIDED TO YOU "AS IS, WITH ALL DEFECTS" AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
13. Assignment. Neither this Agreement nor any of your rights and obligations hereunder may be assigned, subcontracted or otherwise transferred by You without EduTrak's prior written consent. Any attempted assignment, subcontract or transfer in contravention of this Section will be void and will be considered a material breach of this Agreement. This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
14. Suggestions. Any and all comments, suggestions, feedback and materials that You make, provide, or send to EduTrak shall become EduTrak's exclusive property; and You hereby transfer, sell, and assign to EduTrak all of your right, title, and interest in and to any such comments, suggestions, feedback, and materials, including without limitation, any and all related Proprietary Rights.
15. Relationship of the Parties. This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever.
16. Notices. Except to the extent that this Agreement provides that such communication will be made through your account portal page, all written communications to You will be deemed delivered if sent to the contact points provided to EduTrak during your registration for the Services, or to such other contact points as you provide in writing. You must include a valid e-mail address as one of your contact points. All written communications regarding legal notices to EduTrak must be mailed by certified mail or sent via a nationally-recognized carrier which provides proof of delivery (e.g., Federal Express or UPS) to 700 Twelve Oaks Center Drive, Suite 162, Minneapolis, MN 55391.
17. Severability. If any provision of this Agreement is held unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or the applicable court decision.
18. Force Majeure. If either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, the substantial inoperability of the Internet, or other event beyond the reasonable control of the affected party (a "Force Majeure Event"), all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure Event.
19. Waiver. Any waiver by EduTrak of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. Any waiver must be in writing. Failure by EduTrak to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive EduTrak of the right to insist upon strict adherence to that term or any other term of this Agreement.
20. Governing Law. This Agreement shall be governed by the laws of the State of Minnesota, without giving effect to its conflicts of law principles. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree and consent to the exclusive jurisdiction of, and venue in, the federal and state courts in Hennepin County, Minnesota.
21. Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
22. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement. The Parties have agreed that this Agreement as well as any notice, document or instrument relating to it be drawn up in English only.
23. Amendment. EduTrak may revise this Agreement from time to time by posting a new version on the EduTrak website. Revised terms will become effective thirty (30) days after posting thereof (the "Revision Date"). You waive any right to notice of revised terms other than through the EduTrak website, and such waiver will remain in force even if EduTrak does provide notice by e-mail or another medium. Your continued use of the Services after any Revision Date will confirm acceptance of revised terms. This Agreement may not be revised or amended in any other way, except through a written contract executed by authorized representatives of both parties. EduTrak may provide notices and information to You via e-mail, but no e-mail exchange will amend this Agreement, even if such messages purport to do so.
BY CHECKING THE BOX NEXT TO THE TEXT "I AGREE TO THESE TERMS OF SERVICE.", I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THIS AGREEMENT, AND THAT I AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
