1. Governing Terms
If you are entering into this Agreement on behalf of a company or other legal entity (including if you are School Personnel entering on behalf of an Institution), you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you”, “your” or “User” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services.
If you comply with the terms of the Agreement, the Company gives you permission to access and use the Services for your personal use. If you are School Personnel such use must be consistent with the license granted in the Subscription Agreement. The Services are only available for noncommercial use and should only be used for educational purposes or other lawful purpose as permitted by the Company.
We are constantly changing and improving the Services. Unless otherwise stated in a Subscription Agreement, we may add or remove functionalities or features, and we may suspend or stop the Services altogether, including but not limited to, for example, if you do not comply with this Agreement or if we are investigating suspected misconduct. We may also add or create new limits to the Services or restrict your access to all or a part of the Services at any time without notice or liability, provided that all such actions are consistent with the Subscription Agreement, if applicable.
The Services are intended solely for the non-commercial use of our Users and may only be used in accordance with this Agreement. Services as used herein includes all past, present and future content of Positivly, including, all the software, hardware and technology used to provide the Services (including Ascend proprietary code and third-party software), user interfaces, materials displayed or performed on the Services, such as text, graphics, articles, photographs, images, illustrations and the design, structure, sequence, and all other intellectual property, including all Company Marks. “Company Marks” means the trademarks, service marks, logos, or any other trade name, trademarks, service marks and other distinctive or proprietary brand features of Ascend.
The Services are protected by copyright and other intellectual property laws. Using the Services does not give you ownership of any intellectual property rights in the Services. You agree that, as between you and the Company, all the intellectual property rights in the Services which do not include User Content (as defined below) are owned by the Company or its licensors. These terms do not grant you the right to use any Company Marks.
You will not, nor will you allow any third party (whether or not for your benefit) to:
Sub-license, rent, lease, loan, distribute, or sell access to the Services;
Build or support (and/or assist a third-party in building or supporting) products or services in competition with the Company, or access the Services to build a product using similar ideas, features, functions, interface or graphics of the Services;
Use, store, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, create derivative works from, display, license, sell or otherwise exploit the Services for any purposes other than as expressly permitted under this Agreement;
Decompile, reverse engineer, disassemble, or otherwise attempt to obtain the source code of the Services;
Circumvent, disable or otherwise interfere with security related features or features that prevent or restrict use or copying of the Services or any User Content;
Remove, obscure, or alter any copyright, logo, trademark, or other legal notices displayed in or along with the Services or other custom products or merchandise, or otherwise use any of the Services in a manner that creates the impression that the Services belong to you.
In the course of using the Services, School Personnel may provide or post certain content or information (including, but not limited to, photos, videos, drawings, journals, or documents) which may be used by the Company in connection with the Services and which may be visible to certain other Users (collectively “User Content”). Additionally, some User Content may be deemed an Education Record (as defined below).
School Personnel and Users may occasionally if permitted by us submit feedback, comments or suggestions for improvements to the Services (in written, oral or any other form) (“Feedback”).
Consistent with applicable law, as between the Company and you, you (or your Institution as applicable) retain all ownership rights you have in any User Content and Feedback. Company does not claim any ownership rights in the User Content or Feedback. Please note that, while you retain ownership of your User Content, any template or layout in which you arrange or organize such User Content through tools and features made available through any of the Services are not proprietary to you and rights to such templates or layouts will remain with us or our service providers.
In order to allow us to provide the Services, you hereby allow us to use the User Content pursuant to the license granted to us in the Subscription Agreement. Specifically, the such license, whether or not enumerated in the Subscription Agreement, permits us to do the following:
use, host, copy, store, distribute, publicly perform and display, publish (in whole or in part), modify, and create derivative works of such User Content as necessary to (a) provide, improve and make the Services available to you and other Users including through any future media in which the Services may be distributed;
use and disclose metrics and analytics regarding the User Content in an aggregate or other non-personally identifiable manner (including, for use in improving the Services or in marketing and business development purposes);
use, modify, prepare derivative works, publish, distribute and sublicense Feedback without any compensation to you;
use any User Content that has been de-identified for any product development, research or other lawful purpose subject to the DPA; and
5. Your Responsibilities
You agree that you and/or your Institution are responsible for making sure that you have all rights in the User Content, including the rights necessary for you to grant us the foregoing licenses to the User Content. School Personnel represent, covenant and agree that the submitting User has all required rights to submit, post, upload or otherwise, own, use or disseminate the User Content it submits or uploads without violating any third-party rights. You are responsible for ensuring your User Content complies with the Terms.
All information posted or transmitted through the Services is the responsibility of the person that posted it (and the applicable Institution), and we will not be liable for any errors or omissions in any content.
You acknowledge that all content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. You acknowledge that we have the right to pre-screen, filter, edit, remove, refuse to accept, post, display, or transmit any User Content through or on the Services in whole or in part at any time for any reason or no reason with or without notice and without liability of any kind.
Additionally, we do not guarantee that we will publish any of your User Content, and reserve the right to remove User Content from the Services at any time for any reason, such as if we receive a notice reports a User Content infringes someone’s intellectual property rights.
6. Your Likeness
While we do not permit User Content containing personal information of Users under the age of 13, if you, as School Personnel, upload any User Content to any area of our Services containing your likeness or the likeness of others, you also agree to the following:
You consent to the use of your likeness, and you have obtained (as necessary) the written consent, release, and/or permission of every identifiable individual who appears in your User Content to use such individual’s likeness, for purposes of using and otherwise exploiting the User Content in the manner contemplated by this Agreement, or, if any such identifiable individual is under the age of eighteen (18), you have obtained any necessary written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request).
If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we require that you not to include any identifying information (such as the individual’s first and last name or address) with such User Content. If you do include such identifying information, you will be responsible for any and all damages that result therefrom and the Company shall have no liability for the same.
If you are not School Personnel authorized to post User Content via a Subscription Agreement, you are not permitted to post User Content in any way or in any manner.
8. School Personnel and Children
If you are a School Personnel accessing the Services on behalf of a school, school district, education service center, other similar educational institution (an “Institution”), the following terms apply to you: you agree that you are acting on behalf of (or have received all necessary permission from) your Institution to enter into this Agreement and to register and use the Services. The School Personnel is responsible for obtaining any necessary approvals from their school’s authorities and administrators before using the Services. School Personnel that are authorized by the Institution to use the Services and post User Content may only do so after setting up an administrative account with the Company. Upon termination of a School Personnel or other staff member’s employment with the Institution, such individual must return and cease using all login details related to the administrative account.
You further understand and acknowledge that The Children’s Online Privacy Protection Act (“COPPA”) prohibits online service providers from knowingly collecting personal information from children under 13 years of age without parent or legal guardian consent and you understand that we will not let children under the age of 13 use certain features of the Services unless you obtain School Consent or parental consent. “School Consent” mean that you and your Institution choose to act as the agent of the parent of the child and consent on the parent’s behalf to the child’s use.
You, the School Personnel, and/or the Institution will be solely responsible (and hereby agree that the Company is not responsible) for 1) providing all required notices to parents under COPPA, as applicable; 2) obtaining parental consent (or if allowed by your Institution’s policy, acting as the agent of the parent and consenting on their behalf) under COPPA; and 3) providing a means for a parent to review any personal information contained in Student Data collected through the Services and refuse to permit its further use as required by COPPA. This includes without limitation, limiting access to the Services to those student Users from whom School Personnel has received valid Consent forms and complying with all parental requests regarding the collection, use and disclosure of such parent’s child’s information.
School Personnel or the Institution are responsible for disseminating any required parental consent forms to the parents of potential child Users. Under no circumstances will the Company be liable for the School Personnel’s failure to consult their school’s authorities and administrators or for failing to obtain School Consent when required.
If you are User that is under 13 years old, please do not send any personal information about yourself. If we learn we have collected personal information from a student under 13 without parental consent being obtained the Institution, we will delete that information as quickly as possible. If you believe that a student under 13 may have provided us personal information in violation of this paragraph, please contact us at email@example.com.
We understand that it is important that Institutions comply with the Family Education Rights and Privacy Act (“FERPA”) and related regulations. Certain information that may be provided to us by School Personnel and maintained by an Institution, may be considered an education record (“Education Record”) under FERPA. The Company is not in a position to provide legal advice regarding whether the school’s existing FERPA disclosures are sufficient. To the extent that School Personnel have questions regarding these issues, they should consult the school’s own legal counsel for more information.
Company may, now or in the future, incorporate certain functions that allow Users to interact with the Services through the use of interactive features, such as “like” buttons (“Interactive Features”). Users under the age of 13 years old may not use any such Interactive Features and Company will not collect any personally identifiable information from User under the age of 13 years old related to such User use of the Interactive Features.
If you use any third-party applications or websites that are integrated or used in connection with our Services (“Third-Party Applications”), you are solely responsible for your interactions with such Third-Party Applications. Additionally, if you elect to use any Third-Party Applications, you are solely responsible for the selection of and any transfer or downloading of any User Content, or any other data or content stored on the Services, to such Third-Party Applications. The Company shall not be responsible for any disclosure, modification or deletion of your data, or the use of your data by such Third-Party Applications, including, without limitation, any User Content, resulting from any such access by Third-Party Applications. The inclusion of Third-Party Applications and links to third-party websites on the Services does not imply our affiliation or endorsement of such content. You agree that we are not responsible for the accuracy, integrity, quality, legality, usefulness, safety or intellectual property rights of or relating to such Third-Party Applications and/or websites.
If you use any Third-Party Applications, including without limitation, to create and link or integrate any videos or other content (“Third-Party Application Created Content”) to your account on the Services, it is your responsibility to obtain any and all necessary rights you need as necessary to grant us the license set forth herein and the Subscription Agreement. You are also solely responsible for all Third-Party Application Created Content, and for ensuring that such Third-Party Application Created Content meets all applicable conditions and restrictions set forth in this Agreement. You represent and warrant, in connection with any use of Third-Party Applications, that you: (i) shall comply at all times with all applicable third-party application terms, including regarding the indirect or direct transfer of any User Content or other data to any third parties; (ii) shall comply with any and all process and guidelines set forth (or that may be set forth) by us regarding Third-Party Applications; and (iii) will comply with the Community Guidelines for all content you link to or integrate with the Services through the use of any Third-Party Applications.
You warrant, represent and agree that you will not provide any User Content or otherwise use the Services in a manner that:
infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights;
violates any international, federal, state or local law, statute, ordinance or regulation or which would render Company in violation of any applicable laws or regulations, including without limitation, COPPA, state student privacy laws, and FERPA (the “Laws”);
is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable;
jeopardizes the security of the Services in any way, such as allowing someone else access to your account or password or submitting User Content that contains viruses.
Additionally, if you are permitted to submit User Content you represent, warrant and agree that you possess all rights necessary to provide your User Content and grant Company the rights in this Agreement, will comply with the Laws in connection with your use of the Services; and are solely responsible for providing notices and obtaining consents required by applicable Laws for students to use the Services or to provide User Content, including compliance with the applicable provisions of COPPA when obtaining School Consent.
14. Community Guidelines
You will only use the Services as permitted by Law.
You will not post unauthorized commercial communications (such as spam, promotional emails, or advertisements) on or through the Services.
You will not collect Users’ content or information, or otherwise access the Services, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission.
You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on the Services.
You will not upload viruses or other malicious code, files or programs.
You will not collect, solicit or otherwise obtain login information or access an account belonging to someone else.
You will not use the Services to violate a person’s right to privacy or publicity or otherwise collect, use or disclose data, including personal information, about other users without their consent or for unlawful purposes or in violation of any Law.
You will not bully, intimidate, or harass any User or use the Services in any manner that is threatening, abusive, violent, or harmful to any person or entity, or invasive of another’s privacy.
You will not post any User Content or use the Services in a manner that infringes, violates or misappropriates any third-party’s intellectual property rights or other proprietary rights, privacy rights or contractual rights.
You will not use the Services in any way to upload, post, transmit, email or otherwise distribute content that: is hate speech, discriminating, defamatory, threatening, pornographic or obscene; incites violence; contains nudity or graphic or gratuitous violence; or is otherwise objectionable as reasonably determined by us.
You will not use the Services to do anything unlawful, deceptive, misleading, illegal, unethical, malicious, or discriminatory.
You will not do anything that could disable, overburden, or impair the proper working or appearance of the Services or prevent other Users from using the Services, such as a denial of service attack or interference with page rendering or other Services functionality.
You will not access (or attempt to gain unauthorized access) to the Services or to the Company’s computer systems by any means other than as permitted under the Terms or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Services.
You will not employ misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin on any content transmitted to or through the Services.
You will not use the Services in any commercially unreasonable manner or in any manner that would disparage the Company.
You will not impersonate a Company employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.
You will not use the Services in any manner that is harmful to minors. Without limiting the foregoing, you will not transmit or post any content anywhere on the Services, including any User Content, that violate child pornography laws or that otherwise violates any child sexual exploitation laws.
You will not copy, modify, or distribute any text, graphics, or other material or content available through the Services without our prior written permission, or if such content is a User Content, the prior written consent of such User.
You will not facilitate or encourage any violations of this Agreement or our policies, including, without, limitation, to facilitate the unlawful distribution of copyrighted content.
THE SERVICES (AND ANY ASSOCIATED PRODUCTS, THIRD-PARTY CONTENT, THIRD-PARTY WEBSITES, THIRD-PARTY APPLICATIONS, USER CONTENT, COMPANY SOFTWARE AND ANY OTHER CONTENT (“COLLECTIVELY THE “COMPANY OFFERINGS”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY (AND ITS PARENT, SUCCESSORS, AFFILIATES, SUBSIDIARIES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, OFFICERS, DIRECTORS, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS (“COMPANY PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE COMPANY OFFERINGS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF QUALITY, ACCURACY, PERFORMANCE, AVAILABILITY, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. IN PARTICULAR, THE COMPANY PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT THE COMPANY OFFERINGS (1) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE TO YOUR LIKING, (2) WILL BE TIMELY, SECURE, ACCURATE, FREE FROM ERRORS OR LOSS, OR UNINTERRUPTED, OR THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR (3) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. SOME FEATURES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER.
ANY MATERIAL DOWNLOADED FROM THE WEBSITE OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT THE USER’S OWN DISCRETION AND RISK, AND THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ACCESSING OR DOWNLOADING ANY SUCH MATERIAL.
16. LIMITATION OF LIABILITY
UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL THE COMPANY OR THE COMPANY PARTIES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO (i) THIS AGREEMENT; (ii) YOUR USE OR THE INABILITY TO USE THE COMPANY OFFERINGS; OR (iii) ANY INTERACTION WITH ANY THIRD-PARTY THROUGH OR IN CONNECTION WITH THE COMPANY OFFERINGS, INCLUDING OTHER USERS.
UNLESS OTHERWISE STATED IN A SUBSCRIPTION AGREEMENT, IN NO EVENT WILL THE COMPANY OR THE COMPANY PARTIES BE LIABLE TO YOU IN THE AGGREGATE (FOR ALL POTENTIAL CLAIMS BY YOU) FOR ANY DAMAGES INCURRED IN EXCESS OF FIVE THOUSAND DOLLARS ($5,000).
As a condition to using the Services in certain capacities, including posting User Content (if authorized pursuant to a Subscription Agreement), you will be required to register with Company and selecting a password and username. You shall be responsible for maintaining the confidentiality of your login credentials. We will not share with anyone your Account Credentials or account. You may not transfer your Account Credentials or account to anyone without express prior written consent of Company.
The Company will not be liable for any direct or indirect loss that you may incur as a result of someone else using your Account Credentials, either with or without your knowledge or for a failure to comply with this Section. However, you may be held liable for losses incurred by the Company or another party due to someone else using your Account Credentials.
You expressly agree to immediately notify us of any unauthorized use of your account or any other breach of security of your Account Credentials.
The term of this Agreement and the rights granted hereunder commences on User’s use of the Services (or for Institution Users, the effective date set forth in the Subscription Agreement) and shall continue until terminated as set forth herein (or for Institution Users, the time period set forth in the Subscription Agreement). Ascend may at any time terminate or suspend any or all rights and/or licenses granted to you under this Agreement without prior notice, except as otherwise provided in a Subscription Agreement. You may stop using the Services at any time.
You agree, to the extent permissible by law, to indemnify, hold harmless and defend Company and the Company Parties from and against all damages, losses, demands, liabilities, judgments, settlements, costs and expenses of any kind (including reasonable attorneys’ fees) from any claim or demand made by any third-party relating to or arising out of (i) your access to, use, or misuse of the Services, (ii) your breach of alleged breach of this Agreement, (iii) your failure to comply with applicable Laws (including any failure to obtain or provide any necessary consent), (iv) the infringement by you or any third-party using your account of any intellectual property, privacy, or other right of any person or entity, including in connection with your User Content, or (v) your breach or alleged breach of any interaction, agreement, or policy between you and any other Users.
Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company.
The obligations under this Section 19 shall not apply to Institutions or School Personnel acting on behalf of an Institution.
20. Governing law and Dispute Resolution
This Agreement shall be governed and construed under the laws of the State of Ohio, without reference to its conflict of law principles. Any conflict arising under this Agreement or the Services shall be resolved in the applicable federal or state courts in the State of Ohio.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by you except with Company’s prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without restriction. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that the Agreement may not be modified, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.