Terms & Conditions
1. SERVICES AND SUPPORT
Authorable, Inc. (“Company” or “Authorable”) will use commercially reasonable efforts to provide Client the Services. As part of the registration and initiation process, Client will provide information as requested by Authorable to establish and support the account and Services. Client agrees to meet all technology requirements for implementation of the program as Authorable may promulgate from time to time. Additionally, Client will comply with those additional requirements as Authorable may promulgate from time to time which may include but not be limited to group sizes and age ranges, provision of staff, dedicated time in which the students may participate in the school publishing program and the circulation and completion of student voting, surveys and feedback.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client will not: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Authorable or authorized within the Services); sublicense or transfer any of the Services or any associated rights without Authorable’s explicit written consent; use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Further, Client may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.3 Client represents, covenants, and warrants that Client will use the Services only in compliance with Authorable’ standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Authorable, its directors, officers, employees, agents, affiliates, distributors, successors and assigns (collectively “Authorable Indemnitees”) from any and all liability arising from the provision of Services, including any use of or reliance upon content posted by other users or Clients. This indemnity extends, but is not limited to, any and all expenses, including attorneys’ fees, damages, judgments, fines, settlements and all other amounts that any of the Authorable Indemnitees becomes legally obligated to pay in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services. Although Authorable has no obligation to monitor Client’s use of the Services, Authorable may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Client is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client is responsible for maintaining the security of the Equipment, Client account(s), passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
2.5 Client will not post any improper, inappropriate or offensive material within any message feature, community board or chat function provided through the Service. Authorable may, in its sole and absolute discretion, deem content inappropriate, remove it from the Service and disable Client’s access to the Service (either in total or to those of Client’s users violating this provision) if a Client’s users violate the provisions of this Section 2.5. Client understands and agrees that it is responsible for any content or messages posted by any of the users assigned to or associated with its account.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS; DATA PRIVACY COMPLIANCE
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Authorable includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Authorable to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Authorable owns and retains all right, title and interest in and to (a) the Services, all onboarding and implementation materials, improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation, orientation, rollout or support, (c) all intellectual property rights related to any of the foregoing (d) all data that is based on or derived from the Client Data and provided to Client as part of the Services and (e) any content posted or provided by Client or a user associated with Client within Authorable systems or otherwise associated with the delivery of Services.
3.3 Notwithstanding anything to the contrary, Authorable has the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Authorable will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Authorable offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 In connection with any Services (Pilot or otherwise) offered by the Authorable, Client may be asked to provide information, to provide direct feedback or otherwise respond to surveys or other inquiries regarding the Services. Authorable will retain all rights to the responses, information and feedback provided by the Client, including but not limited to any feedback that is integrated into Authorable’ products and services. Additionally, Authorable will retain all rights to publications associated with the delivery of Services produced by Client and the Clients users. Client grants Authorable a fully paid-up, perpetual, worldwide, non-exclusive license to use its name along with its logo/mark in any materials generated or published through use of the Service.
3.5. Authorable has implemented commercially reasonable and appropriate technical and organizational measures intended to secure Client data from accidental loss and from unauthorized access, use, alteration or disclosure. Authorable will not use or sell the personal information of Users to market or advertise to users or student’s or families or guardians thereof. Client data may include personal information from education records that are subject to the Family Educational Rights and Privacy Act (20 U.S.C. 1232g) and the Family Educational Rights and Privacy Act Regulations (34 CFR Part 99), as amended or otherwise modified from time to time (“FERPA”). To the extent that Client Data includes such education records (“Education Records”), Authorable will comply with FERPA, and will not disclose or use Education Records received from or on behalf of Client (or its Users) except as permitted or required by this Agreement, as required by law, or as otherwise authorized in writing by Client. For the purposes of FERPA, Authorable shall be considered a “school official”.
To the extent that Client data includes personal information concerning Student Users under 13, Authorable will comply with Children’s Online Privacy Protection Act, 15 U.S.C. 6501-6506 (“COPPA”) with respect to such information, expressly subject to Client: (i) fulfilling the COPPA consent requirement for the use of the Service by Student Users under 13, and (ii) if Client learns or believes that a student under 13 may be using the Service without adequate consent having been provided, Client will immediately suspend such student’s access to the Service and notify Authorable.
4. PAYMENT OF FEES
4.1 Client will pay Authorable the then applicable fees described in the Services Order Form for the Services in accordance with the terms therein (the “Fees”). Authorable reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term, Pilot Service Term or then‑current renewal term, upon sixty (60) days prior notice to Client (which may be sent by email). If Client believes that Authorable has billed Client incorrectly, Client must contact Authorable no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
4.2 Authorable may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Authorable thirty (30) days after issuance of the invoice, unless otherwise specified within the Services Order or on the invoice. If Client fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law (i) Authorable reserves the right to suspend the Services upon ten (10) business days’ notice, until such amounts are paid in full, and (ii) Authorable will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Client pays all amounts due, together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Authorable in collecting such overdue amounts or otherwise enforcing Authorable's rights hereunder; provided that Authorable will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Client is cooperating diligently to resolve the issue.
4.3 Fees for Services exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any product or Services covered hereby. Unless Client provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Client is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, "Taxes") arising from Authorable’s provision of the Services hereunder, except any taxes assessed on Authorable’s net income. If Authorable is required to directly pay or collect Taxes related to Client’s use or receipt of the Services hereunder, Client agrees to promptly reimburse Integrate for any amounts paid by Authorable.
5. TERM AND TERMINATION
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or with notice in accordance with Section 4.2 in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Client will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Authorable will make available all Client data for retrieval for a period of thirty (30) days, but thereafter Authorable may, but is not obligated to, delete stored Client Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
6.1 Authorable represents and warrants that (i) it has the legal authority to enter into this Agreement, (ii) the Services will materially conform with the relevant Orders and Agreements between the parties, and (iii) Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards.
6.2 For any failure of any Services to conform to their warranties, Authorable’s liability and Client’s sole and exclusive remedy shall be for Authorable, in the case of a breach of the warranty set forth in Section 6.1 (ii) to use commercially reasonable efforts to correct such failure; or, in the case of a breach of the warranty set forth in Section 6.1 (iii) to re-perform the affected Services. If the foregoing remedies are not commercially practicable, Authorable may, in its sole discretion, terminate the applicable Order upon providing Client with written notice thereof, and, as Client’s sole and exclusive remedy, refund to Client (a) in the case of breach of the warranty set forth in Section 6.1(ii) any Services fees paid by Client with respect to the unexpired portion of the current Service Term for the non-conforming Services; or (b) in the case of breach of the warranty set forth in Section 6.1(iii), any fees paid by Client for the portion of Services giving rise to the breach.
6.3 Client represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations.
6.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, AUTHORABLE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND AUTHORABLE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
7. INDEMNITY
7.1 Authorable shall hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Authorable is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Authorable will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Authorable, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Authorable, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Authorable to be infringing, Authorable may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.
7.2 Client shall indemnify, defend and hold Authorable harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against Integrate by a third party alleging that Client data violates applicable law or a third party’s rights (a "Claim Against Authorable"); provided that Authorable (a) promptly gives Client written notice of the Claim against Authorable; (b) gives Client sole control of the defense and settlement of the Claim against Authorable (provided that Client may not settle any Claim against Authorable unless the settlement unconditionally releases Integrate of all liability); and (c) provides to Client all reasonable assistance, at Client’s expense.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, AUTHORABLE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND AUTHORABLE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO AUTHORABLE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT AUTHORABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. CONTENT
Though Authorable reserves the right to remove any content posted by any user, Client understands that functionality may include ability for users to post comments and other content. This content is not reviewed by Authorable and Client understands and agrees that Authorable provides no warranty or representation that any user generated content is appropriate or correct or that the poster has the rights to disseminate such content. Client agrees to utilize such content at its own risk and will hold the Authorable harmless for any use of user generated content in accordance with these Terms and Conditions.
10. NOTICES, GOVERNING LAW AND JURISDICTION
10.1 Except as otherwise specified in this Agreement, all legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the fifth business day after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address provided and as such party may update such information from time to time. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client.
10.2 This Agreement shall be governed and construed in accordance with the laws of the State of California excluding its conflicts of law rules. Notwithstanding the foregoing, the parties acknowledge that any unauthorized disclosure of Confidential Information or any actual or alleged infringement of such party’s or third party’s intellectual property rights might cause the other party to suffer irreparable harm for which damages would be an inadequate remedy and that, in such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable relief in any state, federal, or national court of competent jurisdiction, without bond and without the necessity of showing actual monetary damages.
10.3 Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11. GENERAL PROVISIONS
11.1 Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.
11.2 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.3 Client agrees that during the Term and for twelve (12) months thereafter, it will not recruit or otherwise solicit for employment any person employed, retained or contracted by Authorable who participated in the performance of Services under the applicable Order Form. Nothing in this clause shall be construed to prohibit individual Authorable employees, contractors or consultants from responding to public employment advertisements, postings or job fairs of Client, provided such response is not prompted by Client intentionally circumventing the restrictions of this Section 11.3.
11.4 There are no third-party beneficiaries to this Agreement.
11.5 Client agrees that Authorable may identify Client as a Authorable Client in advertising, media relations, trade shows, the website, and other similar promotional activities, using Client’s name and trademarks in accordance with Client’s trademark guidelines. This is in addition to the license granted in Section 3.4 allowing for inclusion of names and marks within publications produced in delivery of Services.
11.6 No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
11.7 Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, pandemic, government legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party.
11.8 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.9 Neither party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to an affiliate or subsidiary or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order, payment system, other order documentation or otherwise (excluding Order Forms issued by Authorable) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.