Terms of Service for gotFeedback by gotLearning Pilot
This Terms of Service for the gotFeedback Pilot Agreement (the "Agreement") sets forth the terms of service governing the pilot program between gotLearning, a company incorporated under the laws of Delaware ("Provider"), and the entity accessing this webpage ("Client") (collectively, the "Parties"). By signing the Memorandum of Understanding, Client agrees to be bound by the terms and conditions of this Agreement.
BY SIGNING THIS AGREEMENT AND/OR ACCESSING OR USING THE SOFTWARE SERVICES OR PRODUCTS FOR EVALUATION OR TESTING (“PILOT”), YOU ARE ACCEPTING THESE PILOT TERMS OF SERVICE (“PILOT ToS”). IF YOU DONOT AGREE TO THIS PILOT ToS, YOU MAY NOT USE THE SOFTWARE SERVICES OR PRODUCTS FOR EVALUATION AS SET FORTH HEREIN (“SERVICES”). YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THIS PILOT ToS; IF YOU ARE USING THE SERVICES AS AN EMPLOYEE OR AGENT OF AN ORGANIZATION OR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ORGANIZATION OR ENTITY IN ORDER TO ACCEPT THIS PILOT ToS.
1. Services Description. Client shall receive Services consisting of the gotFeedback Software, which includes the following components: (i) access to the gotFeedback learning collaboration system for teachers and administrators; (ii) training sessions for teachers and administrators on using gotFeedback effectively; (iii) standard customer support and technical assistance via Zoom/Google Meet; and (iv) regular updates and new feature releases, at gotFeedback’s discretion.
2. Restrictions.
2.1. Provider’s direct competitors are prohibited from accessing the Services, except withProvider’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
2.2. Client agrees that Provider, in its sole discretion and for any or no reason, may terminate Client’s access to the Services or any part thereof if any of these restrictions are not complied with. Client is solely responsible for exporting Client Content from theServices prior to termination of Client’s access to the Services for any reason, provided that, if Provider terminates Client’s account, except as required by applicable law Provider will provide Client a reasonable opportunity to retrieve the Client Content. “Client Content” means materials, information, records, and/or documents uploaded by Client in, or transferred by, Client through the use of the Services hereunder.
2.3. Any data Client enters into through the use of the Services, and any customizations made to the Services by or for Client, if any, during the Pilot will be lost unless Client purchases a subscription to the same services as those covered by this Pilot Agreement ,or exports such data, in each case before the end of the Term as set forth herein. Client cannot transfer data entered or customizations made during the Term to a service that would be a downgrade from that covered by the Term; therefore, if Client purchases a service that would be a downgrade from that covered by the Term, Client must exportClient Content before the end of the Term or the Client Content will be permanently lost.
3. Users.
3.1. Client is responsible for (i) all activities that occur in User accounts, (ii) Users compliance with this Pilot ToS and (iii) use of the Services in accordance with the terms of this Pilot ToS. “Users” means individuals who are authorized by Client to use the Services and have been supplied user identifications and passwords by Client (or byProvider at Client’s request). Users means the Client’s employees, consultants, contractors and agents of Client, including but not limited to teachers and administrators.
3.2. Provider shall grant access to the Services to the following Users, as specified by Client:
3.2.1. Teachers: Shall be granted access to gotFeedback platform and training sessions.
3.2.2. Administrators: Shall be granted access to comprehensive analytics, training sessions, and support.
4. Service Administration. Client is responsible for collecting and providing the accurate names, emails, phone numbers, and other relevant contact information of all Users needed for initial setup.
5. Delivery of Service.
5.1. Provider shall provide access credentials and login information to Client via email uponpurchase of the Services.
5.2. Training sessions shall be conducted online and scheduled as per mutual agreement.
6. Term and Termination. The Pilot Term shall commence on the effective date of thisAgreement and shall continue for one (1) year (“Term”). Either Party may terminate theAgreement for material breach upon 30-day written notice, subject to the receiving Party’s opportunity to cure during the notice period. Upon the earlier of (i) completion of the Pilot or(ii) termination of the Pilot, the Client will no longer have access to the Services. Provider may terminate the Pilot at any time if Client has or is in breach of the terms and conditions set forth herein or as otherwise agreed. Upon termination of the Pilot program or on the end of this Agreement, the Services will automatically terminate and all content and User information will be deleted, unless Client immediately, and prior to the Pilot end date, migrates to a production Services license pursuant to an executed gotFeedback subscription services agreement.
7. Use and Access. All passwords and access credentials provided pursuant to this Agreement are non-transferable and must not be shared. Unauthorized sharing of access credentials is expressly prohibited. Client is solely responsible for ensuring that Users do not share passwords or access credentials without Client’s prior written authorization. Client and Provider shall coordinate to ensure that Users who change school districts are not granted access to continue using the Services.
8. Research Study Participation. There is no research element of the gotFeedback pilot.
9. Feedback. Client agrees to provide ongoing feedback to Provider regarding the Services.Provider shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its Users, relating to the operation of theServices for use by Provider and users of its offerings.
10. Ordering and Pricing.
10.1. Orders are to be placed through a purchase order delivered to Provider. A copy of such purchase order is attached hereto as Exhibit A.
10.2. Client shall provide an estimated number of Users to Provider upon execution of this Agreement. Client hereby reserves the right to increase the number of Users at no additional cost during the Pilot term.
10.3. Pricing for the Services shall be as set forth in the Pilot Pricing Schedule, attached here to and incorporated herein as Exhibit B.
11. Confidentiality and Data Protection.
11.1. Information that is disclosed by one Party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Pilot ToS that is identified as confidential or that would reasonably be understood to be confidential based on the nature of the information or the circumstances surrounding its disclosure, is ConfidentialInformation of the Disclosing Party. The Services and all information provided or disclosed to Client relating to the Services is Confidential Information of Provider andthe Client data is Confidential Information of the Client. The Receiving Party shall use the same degree of care to protect such Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ Users, and other employees, contractors and agents who need such access for purposes consistent with this Pilot ToS and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by applicable law to disclose the Disclosing Party’sConfidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to theDisclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
11.2. Client and its Users shall follow Provider’s privacy policy, which is hereby incorporated by reference. Provider’s privacy policy can be found at: https://www.gotlearning.com/privacy-policy.
11.3. Client represents and warrants that it owns all right, title, and interest in and to allClient Content. Subject to the terms of this Agreement, Client grants Provider and its affiliates a non-exclusive, non-transferable right to use, transmit and display ClientContent solely to provide Client the Services. Client shall have sole responsibility for the collection, accuracy, quality, legality, and use rights of all Client Content.
12. Proprietary Rights. Subject to the limited rights expressly granted under this Agreement,Provider reserves all rights, title and interest in and to the Services (including the software, reports, data, assessments, analyses or compilations of data created by or returned by theServices, including any derivative works thereof), including all related intellectual property rights.
13. Disclaimer. THE SERVICES AND CONTENT ARE PROVIDED “AS-IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER WHETHER EXPRESS, IMPLIED,STATUTORY OR OTHERWISE. PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, WITHOUT LIMITING THE FOREGOING, PROVIDER ANDITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF THE SERVICES DURING THE PILOT PERIOD WILL MEET CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF THE SERVICES DURING THE PILOT PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE ORFREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE PILOT PERIOD WILL BE ACCURATE. CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PROVIDER AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE SERVICES DURING THE PILOT PERIOD, AND ANY BREACH BY CLIENT OF THIS AGREEMENT. PROVIDER DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.14. Exclusion of Damages. IN NO EVENT SHALL PROVIDER HAVE ANY LIABILITY HEREUNDER TO CLIENT FOR ANY DAMAGES WHATSOEVER, INCLUDING BUTNOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATAOR USE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CLIENT HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES UNLESS SUCH DISCLAIMEROF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PROVIDER’S MAXIMUM LIABILITY WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED $5,000.00.
15. Assignment. Client may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Provider.
16. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
17. Governing Law and Jurisdiction. This Agreement shall be governed by the laws ofPennsylvania. The Parties agree that any litigation between them may only be brought in courts located in Delaware County, Pennsylvania, and each Party consents to the jurisdiction of those courts. However, a Party may bring an action solely for purposes of seeking an injunction to stop or prevent infringement of intellectual property rights or misappropriation of Confidential Information by the other party in any court that has jurisdiction.
18. Entire Agreement and Order of Precedence. This Agreement constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision hereunder shall be effective unless in writing and signed by theParty against whom the change is to be asserted.
19. Survival. The following provisions: “Proprietary Rights,” “Confidentiality and DataProtection” “Users” “Disclaimer,” and “Exclusion of Damages,” shall survive thetermination of the Pilot.
