webFluidMath On-Line Service
Agreement
BY CLICKING ON THE “ACCEPT” BUTTON, ACCESSING
OR USING THE WEBFLUIDMATH ON-LINE SERVICE HEREUNDER (THE “SERVICE”),
YOU (TOGETHER WITH THE BUSINESS OR OTHER ENTITY FOR WHICH THE SERVICES ARE
OBTAINED, “YOU” OR “CUSTOMER”) ARE CONSENTING TO BE BOUND
BY AND ARE BECOMING A PARTY TO THIS ON-LINE SERVICE AGREEMENT
(“AGREEMENT”) WITH FLUIDITY SOFTWARE, INC.
(“FLUIDITY”). THIS AGREEMENT
ALSO INCORPORATES THE TERMS OF THE APPLICABLE PURCHASE ORDER EXECUTED BY
CUSTOMER AND FLUIDITY. IF YOU ARE NOT AN
EMPLOYEE OF THE CUSTOMER, OR IF YOU ARE NOT OTHERWISE AUTHORIZED TO ENTER INTO
THIS AGREEMENT ON BEHALF OF YOURSELF AND CUSTOMER OR IF YOU DO NOT AGREE TO ALL
OF THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AND YOUR
ACCESS TO THE SERVICE WILL NOT CONTINUE.
IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED
TO THESE TERMS AND THOSE STATED IN THE PURCHASE ORDER. PLEASE PRINT A COPY OF
THIS AGREEMENT FOR YOUR FUTURE REFERENCE IF YOU DECIDE TO ACCEPT.
This Agreement sets forth the terms and conditions
under which Fluidity will provide Customer with online access to certain
educational solutions through Fluidity’s web portal (the “Service” as defined
herein).
1.
PURPOSE. Fluidity
has created, owns and operates a web portal (the “Portal”) to provide access to
certain proprietary educational solutions on a fee-for-service basis. Remote
access to the Portal is to be provided through the Internet via a secured, password
protected user interface. Customer desires to access the Portal and use the
Service pursuant to the terms in this Agreement.
2. RIGHT TO
USE ON-LINE SERVICE.
Subject to the terms and conditions of this Agreement, including the payment of
the applicable service fees (if any) stated in the Purchase Order, Fluidity grants
you a non-exclusive, non-transferable, non-sublicenseable limited right and license,
during the term stated in the applicable Purchase Order and any extended term,
to access, use and display via the Portal, the Service solely by Customer and
its authorized users up to the maximum number of authorized users simultaneously
for which the service fees are paid. The Service is intended for educational use
only. You may not use the Service for
any for-profit or commercial purposes.
In addition to the Service initially accessed, the
term “Service” includes any other programs, tools, internet-based
services, components and any “Updates” (for example, Service maintenance,
help content, bug fixes, or maintenance releases etc.) of the Service that Fluidity
provides or makes available to You. As part of Fluidity’s standard Maintenance
and Support, if purchased by You, You are entitled to access Updates to the Service
that Fluidity generally makes available to other users of the Service. Updates shall not include any new service
offerings or upgrades with additional functionality that Fluidity makes
available to customers for an additional fee. Certain Services may be
accompanied by, and will be subject to, additional terms; and in such case,
Your continued use of the Service will constitute Customer’s acceptance of and
agreement to such changes.
3. RESTRICTIONS. You are not permitted under this Agreement to
do any of the following and shall not allow any third party to do any of the
following: (i) access or attempt to access any other Fluidity systems, programs
or data that are not made available for public use; (ii) copy, reproduce,
republish, upload, post, transmit, lease, resell or distribute in any way the Service;
(iii) permit any third party to benefit from the use or functionality of the Service;
(iv) transfer any of the rights granted to You under this Agreement; (v) work
around any technical limitations in the Service, use any tool to enable
features or functionalities that are otherwise disabled in the Service, or
decompile, disassemble, or otherwise reverse engineer the Service except as
otherwise permitted by applicable law; (vi) use the Service in conjunction with
any open source software that may create, or purport to create, obligations of
Fluidity with respect to the Service or have the direct or indirect effect of
causing the Service to become publicly available; (vii) perform or attempt to
perform any actions that would interfere with the proper working of the Service,
including but not limited to using the Service on an operating environment
other than as identified by Fluidity or beyond the intended purposes or
recommended uses stated in the documentation; or (viii) otherwise use the Service
except as expressly allowed in Section 2.
If You requested an educational pricing discount be applied
to the service fee, You purchased an educational service offering. You must be
a student, authorized representative or employee at an accredited non-profit
K-12 school, college or university. Fluidity reserves the right to request
evidence of school affiliation, employment or student status. This may include
proof of accreditation, faculty or student ID, and/or email address
verification.
3. RESERVATION OF RIGHTS AND
OWNERSHIP. The Service is
licensed not sold, and Fluidity reserves all rights not expressly granted to You
in this Agreement. The Service is protected by copyright, trade secret and
other intellectual property laws. Fluidity owns the title, copyright, and other
worldwide intellectual property rights in the Service and all programs, tools,
internet-based services and components therein. You shall not remove any
proprietary, copyright, patent, trademark, design right, trade secret, or any
other proprietary rights legends from the Service. The Service may be used by Customer’s
authorized users in the operating environment identified by Fluidity. This
Agreement does not grant You any rights to trademarks or service marks of
Fluidity.
4. INITIAL
INSTRUCTIONS; CUSTOMER’S ACCOUNT; ACCESSIBILITY TO THE PORTAL AND INTERNET.
a. Initial
Instructions; Establishing Customer’s Account.
As soon as practical after payment of the applicable
service fee, Fluidity shall electronically deliver, without delivery of
physical media, to Customer for its use
during the Term of this Agreement, instructions on how to establish connection
with the Portal and to access the Services.
Customer shall complete the applicable set-up forms with accurate,
complete and updated information, and shall designate an Administrator to
establish Customer’s primary email address for access (“Customer
Username”). After completion of the
set-up forms, Fluidity will establish an account for the Services (“Customer’s
Account”) and issue Customer’s unique Internet link to access the Portal. Customer’s Administrator shall be responsible
for establishing an access password (“Customer Password”), administering Customer’s
Account and maintaining the Customer Username and Customer Password. Customer’s
Administrator may issue, discreetly and confidentially, only to authorized
students, faculty and administrative personnel of Customer, any individual
usernames and passwords to obtain access to the Portal (where each such
employee or authorized agent is deemed a “User”). Customer’s Administrator may assign one or
more Users with certain administrative rights to Customer’s Account and/or
general access rights to use and access the Services.
b. Customer’s
Username and Password, and Users. Customer
acknowledges that it is solely responsible for maintaining the status of its
authorized User base and maintaining the integrity of its usernames and passwords
and for any third party or affiliated company access to the Portal through Customer’s
Account. Customer shall take full responsibility
that each User abides by the terms of this Agreement. Customer and each User
shall protect the Customer Username, Customer Password and any individual
usernames and passwords provided to access the Portal or administer Customer’s
Account, and understand that such usernames and passwords are assigned for use
only by the Customer and its Users and are strictly prohibited from being
shared with other entities or individuals except as allowed by this Agreement.
Unauthorized sharing of the assigned usernames and/or passwords by the Customer
and/or a User shall result in immediate termination of access to the Portal and
Fluidity’s right to terminate this Agreement without issuing a refund of any
kind.
c. Access
to Portal. Customer
shall be permitted access to the Services through the Portal, using the
Internet or similar global computer network. Fluidity warrants and represents
that it will use its commercially reasonable efforts to maintain the active
status of the Portal on the Internet, but shall not be liable for any loss,
cost, damage or expense resulting from or relating to Customer’s loss or lack
of access to the Portal during times Fluidity may be updating or maintaining
the Services or during such time as the Portal may be inaccessible to Customer
for any reason or for no identifiable reason within or outside of Fluidity’s
control.
d. Customer
Responsibilities for Internet Access. Fluidity
will not provide Customer with hardware or software necessary to gain access to
the Internet or the Portal. Customer is
solely responsible for obtaining and maintaining any such hardware and
software; for contracting with an Internet Service Provider (“ISP”), a
telecommunications carrier and any other service providers for services
necessary to establish Customer’s connection or access to the Internet and the
Portal; and for all costs, charges and expenses associated with obtaining and
maintaining such hardware and software and with connecting to and gaining
access to the Internet and the Portal.
5. ACCEPTANCE. The Service will be deemed accepted by You upon
acceptance of this Agreement and payment of the applicable service fee by Customer.
Customer may notify Fluidity to cancel
the service prior to first instance of access and use, provided, however, with
no right to refund of any kind after first use and access. Customer’s rights to
use the Service may be terminated by Fluidity immediately and without notice if
Fluidity is unable to confirm full payment of the fees in accordance with this
Agreement.
6. MAINTENANCE AND SUPPORT. Fluidity may, from time to time, perform
maintenance upon the Service, including providing Updates as Fluidity may deem
necessary. Fluidity will attempt to provide prior notice of scheduled
maintenance but cannot guarantee that such notice will be provided. Fluidity will provide You with limited
maintenance and support of the Service in accordance with its then-current
standard Maintenance and Support terms, during the term for which You pay the
applicable Maintenance and Support fees.
For more information on Maintenance and Support, contact us in writing
at Fluidity Software, Inc.,
7. REGISTRATION AND AUTO UPDATE. The Service’s registration and auto-Update
processes transmit a limited amount of data to Fluidity (or its service
provider) about those specific processes to help Fluidity understand and
optimize them. Fluidity may associate
the data with personally identifiable information about You that You supplied
to Fluidity in connection with the right to use the Service (the “Account Data”
as defined below). Fluidity will protect
any data and personally identifiable information that it collects in accordance
with applicable state and federal privacy regulations.
8. FEEDBACK. Fluidity provides You with a mechanism to
provide feedback, reporting of bugs, suggestions and ideas, if you choose,
about its Service and products (“Feedback”) by sending an email to webfluidmathsupport@fluiditysoftware.com.
You agree that the contents of all oral and written Feedback and any other
materials, information, ideas, concepts, and know-how provided by Customer
become the property of Fluidity. Fluidity
may, in its sole discretion, use the Feedback You provide to Fluidity in any
way, including in future modifications of the Service, online products or
services, and/or advertising and promotional materials relating thereto.
9. PRIVACY; DISCLOSURE OF
INFORMATION TO THIRD PARTIES.
Fluidity will protect as confidential any information that You or Customer may
provide to complete the applicable Purchase Order and establish your paid
service and account with Fluidity (“Account Data”). Otherwise, You acknowledge that Customer
shall not and does not provide access to, nor does Fluidity receive, any of Customer’s
information or data that Customer may protect as confidential or proprietary
(including but not limited to any other personally identifiable information,
other than the Account Data, that may be protected by state or federal
regulations relating to the privacy and protection of personal information). Fluidity shall handle all information
received from its customers under the Fluidity privacy policy, as it may be
amended from time to time. For details
about Fluidity’s privacy policies under which Your Account Data is protected,
please refer to the privacy policy link on the Fluidity website. You agree to
be bound by the applicable Fluidity privacy policy, as it may be amended from
time to time in accordance with its terms. In general, Fluidity will only disclose
information about You to third parties if: (i) it is necessary to complete a
transaction; (ii) it is necessary to verify the existence and condition of your
paid service and account with Fluidity; (iii) it is necessary to comply with a
governmental agency or court order; (iv) You give us your written permission;
(v) it is necessary for activating additional services; or (vi) it is within
the guidelines set forth by our privacy policy.
10. USE BY CUSTOMER.
YOU ARE SOLELY RESPONSIBLE FOR USING THE SERVICE IN A
MANNER CONSISTENT WITH ALL APPLICABLE INTERNATIONAL, FEDERAL AND STATE LAWS. You
agree that Fluidity does not endorse and is not responsible for the substance
or accuracy of the data that You may analyze or process using the Service, and
will not be liable for any damages incurred as a result of any such data. You shall indemnify and hold harmless Fluidity,
its officers, agents and employees from and against any and all liability,
loss, cost, damage, claims, demands or expenses of every kind (including
attorney’s fees) by or to any third party arising out of or resulting in any
manner from or occurring in connection with (i) Customer’s or its user’s
violation of this Agreement, (ii) Customer’s or its users’, agents’ or
employees’ negligence, willful misconduct, criminal acts or omissions, or violation of state, federal
or international laws or regulations, (iii) Customer’s use, non-use,
interpretation or disclosure of data or its results; or (iv) the design, manufacture, sale, promotion or use in
commerce by Customer or any user of any product, service or process relating to
the data any user may analyze or process using the Service. This obligation will survive the termination
of the Agreement.
11. LIMITED WARRANTY. Fluidity
warrants, for a period of thirty (30) days from the first instance of access
and use, that the Service will perform in compliance with the Service
descriptions and documentation provided to You by Fluidity prior to purchase.
If, within thirty (30) days of the first instance of access and use, You report
to Fluidity that the Service is not performing as described above, Fluidity will
use its commercially reasonable efforts to correct the Service within thirty
(30) days of the date You report it. THE
FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
12. DISCLAIMER
OF WARRANTIES. EXCEPT AS
SPECIFICALLY PROVIDED FOR HEREIN, THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS
AVAILABLE” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLUIDITY,
ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS,
DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”)
DISCLAIM ALL GUARANTEES AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING
THE SERVICE, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE,
MERCHANTABILITY, AND NON-INFRINGEMENT. FLUIDITY DOES NOT WARRANT THAT THE
SERVICE IS SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, IDENTITY
THEFT, THREAT OF HACKERS, OTHER PROGRAM LIMITATIONS, OR THAT THE SERVICE WILL
MEET YOUR REQUIREMENTS. FLUIDITY ATTEMPTS TO ENSURE THAT THE USER’S FLUIDITY ACCOUNT
DATA STORED ON FLUIDITY’S SERVERS IS SAFE AND SECURE BY EMPLOYING REASONABLE,
INDUSTRY-RECOGNIZED SECURITY AND VIRUS SAFEGUARDS, AND CONDUCTING ROUTINE
SYSTEM MAINTENANCE AND MONITORING. SOME STATES DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT
EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE
OF PURCHASE OR FIRST ACCESS, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW
LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY
HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
13. LIMITATION OF LIABILITY
AND DAMAGES. THE ENTIRE
CUMULATIVE LIABILITY OF FLUIDITY AND ITS SUPPLIERS FOR ALL MATTERS ARISING FROM
OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE SERVICE FEE PAID BY
CUSTOMER FOR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLUIDITY
AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS
OR SERVICE, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS
OF PROFITS OR INVESTMENT, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF FLUIDITY OR ITS
SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A
REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO
EVENT DOES FLUIDITY ASSUME ANY LIABILITY TO ANY PARTY OTHER THAN YOU ARISING
OUT OF YOUR USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS OF DAMAGES SET
14.
TAXES. Except as expressly stated in a Purchase Order, You will be
solely responsible for the payment of all sales, use, excise, value added
(VAT), goods and services (GST) or other taxes assessed against or due in
connection with this Agreement and the receipt and performance of the Service
and related services hereunder.
15. U.S. GOVERNMENT. The software program that is accessed using the
Service is a “commercial item,” as that term is defined at 48 C.F.R.
2.101 (OCT 1995), consisting of “commercial computer software” and
“commercial computer software documentation,” as such terms are used
in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users
acquire the rights to access and use the software using the Service with only
those rights set forth herein. Fluidity Software,
Inc.,
16. EXPORT RESTRICTIONS. You acknowledge that the Service and software
program accessed using the Service are subject to the U.S. Export
Administration Regulations (15 CFR, Chapter VII) and that you will comply with
these regulations. You will not export or re-export any product, directly or
indirectly, to: (1) any countries that are subject to U.S. export restrictions;
(2) any end user who has been prohibited from participating in U.S. export
transactions by any federal agency of the U.S. government; or (3) any end user
who You know or have reason to know will utilize them in the design,
development or production of nuclear, chemical or biological weapons. You
further acknowledge that the product may include technical data subject to
export and re-export restrictions imposed by U.S. law.
17. RELIEF. Each party agrees that, in the event of any
breach or threatened breach of this Agreement, Fluidity will suffer irreparable
damage for which it will have no adequate remedy at law. Accordingly, Fluidity shall be entitled to
injunctive and other equitable remedies to prevent or restrain, temporarily or
permanently, such breach or threatened breach, without the necessity of posting
any bond or surety. Except as
specifically provided otherwise, each right and remedy in this Agreement is in
addition to any other right or remedy, at law or in equity, and the exercise of
one right or remedy will not be deemed a waiver of any other right or remedy.
18. MISCELLANEOUS. Except as expressly set forth in this
Agreement, this Agreement is a complete statement of the agreement between You
and Fluidity and sets forth the entire liability of Fluidity and its Suppliers
and your exclusive remedy with respect to the Service. The Suppliers, agents,
employees, distributors, and dealers of Fluidity are not authorized to make
modifications to this Agreement, or to make any additional representations,
commitments, or warranties binding on Fluidity. Any waiver of the terms herein by
Fluidity must be in a writing signed by an authorized officer of Fluidity and
expressly referencing the applicable provisions of this Agreement. If any
provision of this Agreement is invalid or unenforceable under applicable law,
then it shall be changed and interpreted to accomplish the objectives of such
provision to the greatest extent possible under applicable law, and the
remaining provisions will continue in full force and effect. This Agreement
will be governed by
19. AMENDMENT. Fluidity shall have the right, to change or add
to the terms of this Agreement at any time, (provided that it is not Fluidity’s
intent that such change substantially affect the access rights granted to Customer
in Section 2 and for which consideration was paid by Customer) and to change,
delete, discontinue, or impose conditions on any feature or aspect of the Service
(including but not limited to Internet based services, pricing, technical
support options, and other product-related policies) upon notice by any means Fluidity
determines in its discretion to be reasonable, including posting information on
its website concerning any such change, addition, deletion, discontinuance or
conditions in the Service. Any use of the Service by Customer after Fluidity’s
publication of any such changes shall constitute Your acceptance of this
Agreement as modified.
20. TERMINATION. Your rights under this Agreement may be
terminated or suspended by Fluidity immediately and without notice if you fail
to comply with any term or condition of this Agreement. Additionally, Fluidity
reserves the right (but has no obligation) to delete Customer’s Account Data
stored on Fluidity’s servers if the access right has been terminated or if you
have not renewed a service subscription for the Service. Upon termination or
expiration of the service subscription for any reason, you must immediately cease
using the Service. Any termination of this Agreement shall not affect Fluidity’s
rights hereunder.