SchoolTracs Course Management System Terms of Service
(“Agreement”)
Last updated February 27, 2024
By indicating your acceptance of this Agreement through a signed
Order Form or by accessing or using the SchoolTracs Course
Management System (the “Service”), you are
accepting all terms and conditions set out below. If you do not
agree to this Agreement, you may not use the Service.
If you are designated and granted access to the Service on behalf
of a Customer (“User”), you must be authorized to
sign for and bind such entity in order to accept this Agreement, and
you represent and warrant that you have the authority to do so. The
rights granted under this Agreement are expressly conditioned upon
acceptance by such Users.
The terms of this Agreement constitute a legally binding agreement
made between you, whether personally or on behalf of an entity
(“Customer”, "you" or
“your”) and SchoolTracs Ltd
(“SchoolTracs”, "Company",
"we", "us", or
"our"), concerning your access to and use of the
Service, and you agree that this Agreement is enforceable like any
written agreement signed by you. This Agreement consists of the
terms and conditions set forth below, and any other ancillary
documents (e.g. attachments, addenda, exhibits) expressly referenced
as part of this Agreement, and any Order Forms that reference this
Agreement.
The “Effective Date” of the Agreement is the
date which is the earlier of (a) your first access to the Service
or (b) the effective date of the first Order Form referencing this
Agreement
Modifications to this Agreement. From time to
time, SchoolTracs may modify this Agreement. Unless otherwise
specified by us, changes become effective for you upon renewal of
the then-current Subscription Term or upon the effective date of a
new Order Form after the updated version of this Agreement enters
into effect.
SchoolTracs will use reasonable efforts to notify you of the
changes through communication via your account on the Service,
email or other means. You may be required to click to accept or
otherwise agree to the modified Agreement before commencing a new
monthly service term, and in any event continued use of the
Service after any updated version of this Agreement goes into
effect will constitute your acceptance of such updated version.
1.1 Service Provision and Access. SchoolTracs
will make the Service available to you for the Subscription Term
solely for use by you and Users, in accordance with this Agreement
and the Order Form.
1.1.1 You may permit your Contractors and Affiliates to serve as
Users provided that any use of the Service by each such Contractor
or Affiliate is solely for your benefit or the benefit of such
Affiliate.
1.1.2 You shall be responsible for each User’s compliance with
this Agreement, and any acts or omissions by any User shall be
deemed to be acts taken by you.
1.1.3 Subject to your compliance with this Agreement, SchoolTracs
grants you, your Contractors and/or Affiliates, for the
Subscription Term, a limited, non-exclusive, non-transferable,
non-sublicensable, revocable license to access and use the Service
for your internal business purposes only.
“Affiliate” shall mean an entity that, directly
or indirectly, owns or controls, is owned or is controlled by, is
under common ownership or control of a party, or in the case of
the Customer, a franchisee or education institution branch. As
used in this definition, “control” means the power to direct the
management or affairs of an entity and “ownership” means the
beneficial ownership of more than fifty percent (50%) of the
voting equity securities or other equivalent voting interests of
an entity.
1.1.4 You acknowledge and agree that SchoolTracs may modify,
update, or discontinue the Service or any features or
functionality of the Service, at any time, without prior notice or
liability to you. SchoolTracs will use reasonable efforts to
notify you of any material changes to the Service that may affect
your use or access. You also acknowledge and agree that
SchoolTracs may impose limits on certain features or aspects of
the Service, or restrict your access to parts or all of the
Service, at any time, without prior notice or liability to you.
1.2 Use Restrictions. You shall
not (and shall not permit any third party
to):
1.2.1 sell, rent, lease, license, distribute, provide access to,
sublicense, or otherwise make available the Service to a third
party;
1.2.2 copy, modify, adapt, translate, reverse engineer,
decompile, or disassemble any part of the Service or its content,
except to the extent expressly permitted by applicable law (and
then only upon advance written notice to SchoolTracs);
1.2.3 create derivative works based on the Service or its
content;
1.2.4 use the Service or its content in any unlawful, fraudulent,
or abusive manner, or in any way that interferes with SchoolTracs
or any third party's rights or operations;
1.2.5 access or attempt to access the Service by any means other
than the authorized interface provided by SchoolTracs;
1.2.6 use any automated means, such as bots, scripts, or
crawlers, to access, monitor, or manipulate the Service or its
content;
1.2.7 use the Service or its content to send unsolicited or
unauthorized messages, advertisements, or promotions, or to
transmit any viruses, malware, or other harmful code or
content;
1.2.8 use the Service or its content to infringe or violate any
intellectual property, privacy, or other rights of SchoolTracs or
any third party;
1.2.9 use the Service or its content to collect, store, or
process any personal or sensitive data without obtaining the
necessary consents or providing the necessary notifications, and
complying with the applicable laws and regulations;
1.2.10 use the Service in violation of the SchoolTracs policies
that may be communicated to you from time to time; or
1.2.11 use the Service or its content in any manner that is
inconsistent with this Agreement.
1.3 Affiliates. Your Affiliates may purchase the
Services from SchoolTracs or an applicable SchoolTracs Affiliate,
as applicable, by executing an Order Form
which is governed by this Agreement. This will establish a new
and separate
agreement between your Affiliate and the SchoolTracs entity
signing such Order Form.
1.4 Trial Services. If you are using a free
trial (“Trial Service”), SchoolTracs makes such
Trial Service available to you until the earlier of: (i) the end
of the free trial period as communicated by SchoolTracs or
specified in an Order; (ii) the start date of any purchased
version of the Service; or (iii) written notice of termination
from SchoolTracs (“Trial Services Period”).
SchoolTracs reserves the right to automatically suspend your
subscription to the Service upon the end of the Trail Services
Period until you upgrade to a paid subscription. SchoolTracs
grants you, during the Trial Services Period, a non-exclusive,
non-transferable right to access and use the Trial Service for
your internal evaluation purposes subject to the access and use
restrictions set forth in this Agreement. You are authorized to
use Trial Services only for evaluation and not for any business or
productive purposes, unless otherwise authorized by SchoolTracs in
writing. Any data you enter into the Trial Service and any
configurations made to the Trial Service by or for you during the
term of such Trial Service will be permanently lost unless you:
(a) purchase a subscription to the Service covered by the Trial
Service; or (b) export such data or configurations before the end
of such Trial Period. There is no guarantee that features or
functions of the Trial Service will be available, or if available
will be the same, in the general release of the Service, and you
should review the Service features and functions before making a
purchase. You assume all risks and all costs associated with its
use of the Trial Service. Your sole and exclusive remedy in case
of any dissatisfaction or SchoolTracs’ breach of this Agreement
with respect to such Trial Service is termination of the Trial
Service.
1.5 Compliance with Applicable Laws. SchoolTracs
will make available the Service in accordance with its obligations
under the laws applicable to SchoolTracs’ provision of such
Service to its customers generally, including, without limitation,
those related to data privacy and data transfer, without regard to
your particular use of the Service and subject to your use of the
Service in accordance with this Agreement.
2.1 You agree to pay SchoolTracs the fees for the Service on the
basis specified in the Order Form or as may be otherwise notified
to you before the commencement of a new billing cycle
("Fees"). The Fees shall be invoiced to you on a
monthly basis.
2.2 Fees do not include taxes. You are responsible for paying all
taxes associated with purchases under this Agreement, including
without limitation all use or access of the Service by your Users.
If SchoolTracs has the legal obligation to pay or collect taxes
for which you are responsible under this section, SchoolTracs will
invoice you that amount unless you provide SchoolTracs with a
valid tax exemption certificate authorized by the appropriate tax
authority.
2.3 Except as expressly set forth in this Agreement and to the
extent permitted by law, all payment obligations are
non-cancelable and Fees are non-refundable.
2.4 You are responsible for providing accurate and complete
billing and contact information and updating it as necessary. You
authorize SchoolTracs to charge your credit card or other payment
method for the fees and any applicable taxes. If your use of the
Service is subject to recurring charges, then you consent to our
charging your payment method on a recurring basis without
requiring your prior approval for each recurring charge, until you
notify us of cancellation of the Service, subject to immediate
payment of any outstanding fees. If your payment is overdue,
SchoolTracs may suspend or terminate your access to the Services,
and charge you interest at the rate of 1.5% per month or the
highest rate permitted by law, whichever is lower, on the
outstanding balance
2.5 In the event of any invoicing inaccuracies, SchoolTracs
reserves the right to correct such inaccuracies by issuing a
supplemental invoice even if payment for the original invoice has
already been requested or received.
2.6 No action or proceedings for any overpayment of Fees shall be
commenced against SchoolTracs after the expiry of 1 year following
the crediting of such fees into SchoolTracs’ bank account.
3.1 Rights in Customer Data. As between the
parties, you retain all right, title and interest (including any
and all intellectual property rights) in and to any data that is
uploaded by you or on your behalf for storage or processing in the
Service (“Customer Data”) and any modifications
made in the course of operation of the Service. Subject to this
Agreement, you grant to SchoolTracs and applicable SchoolTracs
Affiliates a non-exclusive, worldwide, royalty-free right to
process the Customer Data solely to the extent necessary to
provide the Service to you, to prevent or address service or
technical problems therein, or as may be required by law.
3.2 Use Obligations. Your use of the Service and
all Customer Data shall comply with applicable laws, government
regulations, and any other legal requirements, including but not
limited to, any data localization or data sovereignty laws,
regulations, and any other third-party legal requirements
applicable to you. You are solely responsible for the accuracy,
content and legality of all Customer Data. You warrant that you
have and shall have sufficient rights in the Customer Data to
grant rights to SchoolTracs under this Agreement and that the
processing of Customer Data by SchoolTracs in accordance with this
Agreement will not violate any laws or the rights of any third
party.
3.3 Data Privacy. The parties shall comply with
the DPA.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 SchoolTracs Intellectual Property. Unless
otherwise indicated, the Service is owned by SchoolTracs and all
right, title and interest (including all patents, copyrights,
trademarks, trade secret and other intellectual property rights)
in the source code, databases, functionality, software, website
designs, audio, video, text, photographs, and graphics subsisting
in or relating to the Service (collectively, "SchoolTracs IP")) are owned or controlled by us or under licence to us. The
SchoolTracs IP is provided in relation to the Service on an "AS
IS" basis for your information and personal use only. Except as
expressly provided in this Agreement , no right, title or interest
in any part of the Service or SchoolTracs IP is granted to you.
You shall not copy, reproduce, aggregate, republish, upload, post,
publicly display, encode, translate, transmit, distribute, sell,
license or otherwise exploit for any commercial purpose whatsoever
the Service or SchoolTracs IP without our express prior written
permission. SchoolTracs may freely use and incorporate any
suggestions, comments or other feedback about the Service
voluntarily provided by you or Users into the SchoolTracs IP.
4.2 Usage Data. Notwithstanding anything to the
contrary in this Agreement, SchoolTracs may collect and use and
process any usage and operations data in connection with your use
of the Service (“Usage Data”) to develop, improve
support, and operate its products and services. SchoolTracs may
not share any Usage Data that includes your Confidential
Information with a third party except (a) in accordance with
Section 5 (Confidentiality) of this Agreement, or (b) to the
extent the Usage Data is aggregated and anonymized such that you
and your Users cannot be identified.
4.3 Customer Reference. SchoolTracs may identify
you as its customer to other SchoolTracs customers or prospective
customers. Without limiting the foregoing, SchoolTracs may use and
display your name, logo, trademarks, and service marks on
SchoolTracs’ website and in SchoolTracs’ marketing materials in
connection with identifying you as a customer of SchoolTracs’.
Upon your written request, SchoolTracs’ will promptly remove any
such marks from SchoolTracs’ website and, to the extent
commercially feasible, SchoolTracs’ marketing materials.
5.1 Each party (as “Receiving Party”) will use
the same degree of care that it uses to protect the
confidentiality of its own confidential information of like kind
(but not less than reasonable care) to: (a) not use any
Confidential Information of the other party (the
“Disclosing Party”) for any purpose outside the
scope of this Agreement; and (b) except as otherwise authorized by
the Disclosing Party in writing, limit access to Confidential
Information of the Disclosing Party to those of its and its
Affiliates’ employees and contractors who need that access for
purposes consistent with this Agreement and who are bound by
obligations of confidentiality to the Receiving Party containing
protections not materially less protective of the Confidential
Information than those herein. If Receiving Party is required by
law, regulation or court order to disclose Confidential
Information, then Receiving Party shall, to the extent legally
permitted, provide Disclosing Party with advance written notice
and cooperate in any effort to obtain confidential treatment of
the Confidential Information including, without limitation, the
opportunity to seek appropriate administrative or judicial relief.
The Receiving Party acknowledges that disclosure of Confidential
Information would cause substantial harm for which damages alone
would not be a sufficient remedy, and therefore that upon any such
disclosure by the Receiving Party, the Disclosing Party will be
entitled to seek appropriate equitable relief in addition to
whatever other remedies it might have at law.
6.1 Term. This Agreement is effective as of the
Effective Date and will remain in effect through your continued
use of the Service, until terminated.
6.2 Termination. You may terminate this
Agreement at any time. Such termination will take effect at the
end of the current paid Service term. SchoolTracs may without
prior notice to you terminate this Agreement in the event of your
material breach of this Agreement.
6.3 Effects of Termination/Expiration. Upon
termination or expiration of this Agreement, SchoolTracs may
immediately deactivate your account, and: (i) you will have no
further right to access or use the Service; and (ii) each Party
shall return or destroy any tangible Confidential Information of
the other Party within its possession or control that is not
contained on the Service promptly upon receiving written request
from the other Party. Any Customer Data contained on the Service
will be deleted within one hundred and eighty (180) days of
termination or expiration of this Agreement. You acknowledge that
you are responsible for exporting any Customer Data to which you
desire continued access to after termination or expiration, and
SchoolTracs shall have no liability for your failure to retrieve
such Customer Data and no obligation to store or retain any such
Customer Data following termination or expiration of the Agreement
with you.
6.4 Suspension. In addition to any of its other
rights or remedies (including those set forth in this Agreement),
SchoolTracs reserves the right to suspend your access to the
Service if
6.4.1 any Fees are fourteen (14) days past due;
6.4.2 SchoolTracs deems such suspension necessary as a result of
your breach of this Agreement;
6.4.3 If SchoolTracs reasonably determines suspension is
necessary to avoid material harm to SchoolTracs or its customers;
or
6.4.4 as required by law or at the request of governmental or
regulatory entities.
7.1 Limited Service Warranty. During the
applicable Subscription Term, SchoolTracs warrants that the
Service will perform in substantial conformity with Service
features description found on https://www.schooltracs.com/. The
foregoing warranty is void if the failure of the Service has
resulted from negligence, error, or misuse of the Service by you,
Users or by anyone other than SchoolTracs. You shall be required
to report any breach of warranty to SchoolTracs within a period of
thirty (30) days of the date on which the incident giving rise to
the claim occurred. SchoolTracs’ sole and exclusive liability, and
your sole and exclusive remedy, for breach of these warranties
will be for SchoolTracs, at its expense, to use reasonable
commercial efforts to correct such nonconformity within thirty
(30) days of the date that notice of the breach was provided; and,
if SchoolTracs fails to correct the breach within such cure
period, you may terminate the Agreement. In such event,
SchoolTracs shall provide you with a pro-rata refund of any unused
pre-paid fees paid for the period following termination as
calculated on a monthly basis for the affected Service. Without
derogating from SchoolTracs’ obligations under this Agreement, you
warrant that you shall take and maintain appropriate steps within
its control to protect the confidentiality, integrity, and
security of your Confidential Information and Customer Data,
including: (i) operating the Service in accordance with applicable
law and; and (ii) dedicating reasonably adequate personnel and
resources to implement and maintain security controls (e.g.
password control etc.). You will be responsible for the acts and
omissions of your Users.
7.2 Compliance with Law. Each Party shall comply
with all applicable, laws and regulations in connection with the
performance of its obligations and the exercise of its rights
under this Agreement.
7.3 Disclaimer. ANY AND ALL WARRANTIES,
EXPRESSED, INCORPORATED OR IMPLIED, ARE LIMITED TO THE EXTENT AND
PERIOD MENTIONED IN THIS AGREEMENT. TO THE EXTENT PERMITTED BY LAW
AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE
IS PROVIDED "AS IS," AND SCHOOLTRACS MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SCHOOLTRACS DOES NOT
WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR
ERROR-FREE, NOR DOES SCHOOLTRACS WARRANT THAT IT WILL REVIEW THE
CUSTOMER DATA FOR ACCURACY. SCHOOLTRACS WILL HAVE NO LIABILITY FOR
DELAYS, FAILURES OR LOSSES ATTRIBUTABLE OR RELATED IN ANY WAY TO
THE USE OR IMPLEMENTATION OF THIRD-PARTY SOFTWARE OR SERVICES NOT
PROVIDED BY SCHOOLTRACS.
8.1 Customer Data and Use Indemnity. You shall
defend and indemnify SchoolTracs and/or its Affiliates and their
officers, directors and employees against any third-party claims,
suits and proceedings (including those brought by a government
entity), and all directly related losses, liabilities, damages,
costs and expenses (including reasonable attorneys’ fees)
resulting from: (i) an alleged infringement or violation by the
Customer Data of such third-party’s patent, copyright, trademark,
trade secret; or (ii) SchoolTracs use of the Customer Data
violating applicable law, provided that such use is in accordance
with the terms of this Agreement and with the terms of the DPA.
8.2 Process. Each Party’s defense and
indemnification obligations will become effective upon, and are
subject to:
8.2.1 the indemnified Party’s prompt notification to the
indemnifying Party of any claims in writing; and
8.2.2 the indemnified Party providing the indemnifying Party with
full and complete control, authority and information for the
defense of the claim, provided that the indemnifying Party will
have no authority to enter into any settlement or admission of the
indemnified Party’s wrongdoing on behalf of the indemnified Party
without the indemnified Party’s prior written consent (not to be
unreasonably withheld).
8.2.3 At the indemnifying Party’s request, the indemnified Party
shall reasonably cooperate with the indemnifying Party in
defending or settling any claim.
9. LIMITATION OF LIABILITY
9.1 Maximum Liability. Except for liability
caused your data infringement indemnity in section 8.1, or your
payment obligations herein, in no event will either Party’s
maximum aggregate liability arising out of or related to this
Agreement, regardless of the cause of action and whether in
contract, tort (including negligence), warranty, indemnity or any
other legal theory, exceed the total amount paid or payable to
SchoolTracs under this Agreement during the twelve (12) month
period preceding the date of initial claim.
9.2 No Consequential Damages. Neither Party will
have any liability to the other Party for any loss of profits or
revenues, loss of goodwill, or for any indirect, special,
incidental, consequential or punitive damages arising out of, or
in connection with this Agreement, however caused, whether in
contract, tort (including negligence), warranty, indemnity or any
other legal theory, and whether or not the Party has been advised
of the possibility of such damages.
9.3 Construction. This Agreement is not intended
to and will not be construed as excluding or limiting any
liability which cannot be limited or excluded by applicable law,
including liability for:
9.3.1 death or bodily injury caused by a Party’s negligence; or
9.3.2 gross negligence, willful misconduct, or fraud.
10.1 Assignment. This Agreement will bind and
inure to the benefit of each Party’s permitted successors and
assigns. Neither Party may assign this Agreement without the
advance written consent of the other Party, consent not to be
unreasonably withheld, except that either Party may assign this
Agreement in its entirety in connection with a merger,
reorganization, acquisition, or other transfer of all or
substantially all of such Party’s assets or voting securities to
such Party’s successor; and SchoolTracs may assign this Agreement
in its entirety to a SchoolTracs Affiliate. Each Party shall
promptly provide notice of any such assignment. Any attempt to
transfer or assign this Agreement except as expressly authorized
under this section will be null and void.
10.2 Independent Contractors. Nothing in this
Agreement will be construed to imply a joint venture, partnership
or principal-agent relationship between SchoolTracs and you, and
neither Party will have the right, power or authority to obligate
or bind the other in any manner whatsoever.
10.3 Notices. Using the Service, sending us
emails, and completing online forms constitute electronic
communications.
10.3.1 You consent to receive electronic communications, and you
agree that all agreements, notices, disclosures, and other
communications we provide to you electronically, via email and
through the Service, satisfy any legal requirement that such
communication be in writing.
10.3.2 You hereby agree to the use of electronic signatures,
contracts, orders, and other records, and to electronic delivery
of notices, policies, and records of transactions initiated or
completed by us or via the Service.
10.3.3 You hereby waive any rights or requirements under any
statutes, regulations, rules, ordinances, or other laws in any
jurisdiction which require an original signature or delivery or
retention of non-electronic records, or to payments or the
granting of credits by any means other than electronic means.
10.3.4 Notices for SchoolTracs should be sent to:
info@schooltracs.com.
10.4 Force Majeure. With the exception of your
payment obligations , neither Party will be liable to the other
Party for any delay or failure to perform which is due to fire,
pandemic, virus, epidemic, travel advisories as to health,
security and/or terrorism, flood, lockout, transportation delay,
war, acts of God, governmental rule or order, strikes or other
labor difficulties, or other causes beyond its reasonable control.
However, in such event, both Parties will resume performance
promptly after the cause of such delay or failure has been
removed.
10.5 Dispute Resolution. We wish to address your
concerns without going through a formal legal process. Before
filing a claim against SchoolTracs, you agree to try to resolve
the dispute informally by contacting info@schooltracs.com. We will
respond to you by email as soon as practicable; however a lack of
response shall not be deemed to constitute any acquiescence or
waiver. We will try our best to resolve the dispute informally
within thirty (30) days. If the dispute is not resolved within
such a period, you or SchoolTracs may bring a formal proceeding in
accordance with Section 10.6 below.
10.6 Governing Law and Jurisdiction. This
Agreement any dispute or claim (including non-contractual disputes
or claims) arising out of or in connection with it or its subject
matter, performance, validity, enforceability or formation shall
be governed by and construed in accordance with the laws of Hong
Kong, and shall be finally resolved by arbitration administered by
the Hong Kong International Arbitration Centre (“HKIAC”) in
accordance with the HKIAC Administered Arbitration Rules in force
when the Notice of Arbitration is submitted. The seat of
arbitration shall be Hong Kong, and the arbitration proceedings
shall be conducted in the English language. The arbitral tribunal
shall consist of one arbitrator. Nothing in this Clause shall
preclude us from initiating proceedings or seeking remedies before
any court of competent jurisdiction solely for the purposes of
obtaining interim or interlocutory remedies or relief in relation
to any breach of this Agreement or infringement of our SchoolTracs
IP.
10.7 Entire Agreement. This Agreement is the
complete and exclusive statement of the mutual understanding of
the parties and supersedes and cancels all previous written and
oral agreements and communications relating to the subject matter
of this Agreement. Notwithstanding the foregoing, Additional
Services may be made available for your use in SchoolTracs’ sole
discretion. SchoolTracs may change and update the Service. For
clarity, all URL terms expressly referenced here include any
updates made to them in the future.
10.8 Severability and Waiver. This Agreement
shall be deemed severable, and the invalidity or unenforceability
of any term or provision hereof shall not affect the validity or
enforceability of this Agreement or of any other term or provision
of this Agreement. Should any term or provision of this Agreement
be declared void or unenforceable by any court of competent
jurisdiction, the Parties intend that a substitute provision will
be added to this Agreement that, to the greatest extent possible,
achieves the intended commercial result of the original provision.
The failure of either Party to enforce any rights granted to it
under this Agreement or to take action against the other Party in
the event of any breach of this Agreement will not be deemed a
waiver by that Party as to subsequent enforcement of rights or
subsequent actions in the event of future breaches.