CUSTOMER understands and agrees that by accessing the Service Materials (defined below), CUSTOMER consents to the terms and conditions contained herein, and creates a binding legal agreement with TransACT that governs CUSTOMER’S access to and use of TransACT’s proprietary Internet-based resource.
This Agreement shall become effective on the date that CUSTOMER first accesses the Service (defined below) (the “Effective Date”) and shall remain in effect for one (1) calendar year thereafter (the “Initial Term”). The Agreement shall automatically renew for additional one-year terms (each a “Renewal Term”) unless and until terminated as set forth below.
CUSTOMER shall pay to TransACT an annual Subscription Fee for the Service. The annual Subscription Fee for the Initial Term shall be paid in full to TransACT no later than thirty (30) business days after the Effective Date. Unless invoiced and collected by TransACT, CUSTOMER is responsible for the payment of all applicable local, state, and federal taxes arising in connection with this Agreement; including but not limited to all privilege, value-add, use, and/or sales taxes.
TransACT reserves the right to increase the annual Subscription Fee for any Renewal Term(s) upon sixty (60) days written notice to CUSTOMER prior to the expiration of the then current term. The Subscription Fee for Renewal Terms shall be invoiced to CUSTOMER no later than sixty (60) days prior to the expiration of the then current term, and shall be paid in full to TransACT prior to commencement of the Renewal Term.
In the event that CUSTOMER fails to timely pay any Subscription Fee when due (including the Initial Payment), CUSTOMER shall be deemed to be in breach of this Agreement. CUSTOMER shall cease any and all access to the Service and use of the Service Materials (as provided below). TransACT shall have the immediate right to pursue any and all rights and remedies available to it pursuant to this Agreement and under the law.
Subject to CUSTOMER’S compliance with all terms and conditions of this Agreement, TransACT grants CUSTOMER a limited, nontransferable, and nonexclusive license to access and use the TransACT proprietary Internet-based resource (individually or collectively, the “Service”), which provides access to a variety of resources which may include multilingual No Child Left Behind (NCLB) parent notices; multilingual IDEA parent notices; multilingual Section 504 parent notices; documents in English and selected foreign languages for School Site Administration, Health and Medical, National School Lunch Programs, and Special Services; accountability and compliance materials and publications for use by school administrators; EduPortal® eLibrary; EduPortal® Paperless Board Meetings; TransACT® Civil Rights EssentialsTM ; ActPoint® KPI Performance Management Systems; ActPoint® RoadMaps (collectively, the “Service Materials”).
Under this license, CUSTOMER and its employees, agents, representatives, and members (individually or collectively, the “Authorized Users”) may access and use the Service, and may print, photocopy, and distribute print versions / hard copies of the Service Materials for use within CUSTOMER boundaries (provided that TransACT’s copyright statement shall be included on all such copies), solely for non-commercial purposes such as school administration, communications, compliance, document and information management, and similar activities in furtherance of CUSTOMER’S educational mission, in compliance with all applicable laws and regulations, any copyright, trademark, and other proprietary rights of TransACT or third parties, and the terms and conditions of this Agreement (the “Permitted Use”).
CUSTOMER shall use the Service Materials only for the Permitted Use. CUSTOMER shall not sell, rent, lease, license, sub-license, transfer, disclose or distribute the Service Materials to anyone other than a Permitted User without TransACT’s express written consent. CUSTOMER is prohibited from copying or distributing the Service Materials to a computer, LAN/WAN, Internet-based or other electronic system owned or operated by someone other than a Permitted User.
TransACT®, TransACT® NCLB Parent Notifications, TransACT® IDEA Parent Notifications, TransACT® Section 504 Compliance Collection, TransACT® GenEd Parent Notifications, TransACT® Free & Reduced-Price Meals Parent Notifications, TransACT® RoadMap, EduPortal® eLibrary, EduPortal® Paperless Board Meetings; TransACT® Civil Rights EssentialsTM ; ActPoint® KPI Performance Management Systems; ActPoint® RoadMaps are trade/service marks registered to TransACT. The absence of a product, service/trade mark, or logo on Service Materials offered but not listed herein does not constitute a waiver of TransACT’s rights with respect to such Materials. CUSTOMER acknowledges and agrees that no title to TransACT intellectual property is transferred under this Agreement. TransACT retains all right, title, and interest in and to all Service Materials.
PROTECTION OF TransACT INTELLECTUAL PROPERTY.
Upon expiration or termination of this Agreement, or upon CUSTOMER’S breach of a material term of this Agreement (including CUSTOMER’S failure to timely pay its Subscription Fee), CUSTOMER shall immediately cease all use of the Service Materials. Unauthorized use of the Service Materials (including but not limited to modifications and derivatives of the Service Materials, or use of the Service Materials or any other TransACT copyrighted material in CUSTOMER or third-party documents in CUSTOMER’S possession) shall constitute a violation of state and federal copyright and/or trademark laws. TransACT shall prosecute violators to the full extent of the law.
CONTACT FOR ALLEGED COPYRIGHT INFRINGEMENT.
TransACT respects the intellectual property rights of others. If CUSTOMER believes that content contained within the Service Materials has been wrongfully copied or distributed, please notify TransACT at the following email address: email@example.com.
DISCLAIMER AND LIMITATION OF LIABILITY.
TransACT’s proprietary Internet-based resource is an Internet information management tool. TransACT has no control over and assumes no responsibility or liability for the reliability or accuracy of the information. CUSTOMER is hereby notified that there is necessarily a delay between the time information changes and the time TransACT updates the Service Materials. THE SERVICE MATERIALS ARE PROVIDED “AS IS.” TransACT MAKES NO, AND DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE MATERIALS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL TransACT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, REVENUE, USE, DATA, OR INFORMATION ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT. TransACT DOES NOT WARRANT THAT FUNCTIONS CONTAINED IN THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. TransACT DOES NOT WARRANT THE ACCESSIBLE DATA TO BE ERROR FREE. TransACT MAKES NO CLAIM TO RENDER LEGAL, POLICY, OR OTHER ADVICE OR SERVICES. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. UNDER NO CIRCUMSTANCES WILL TransACT’s LIABILITY EXCEED THE AMOUNTS PAID BY THE CUSTOMER UNDER THE TERMS OF THIS AGREEMENT. ALL PARTIES SHALL BE RELEASED FROM LIABILITY AND HELD HARMLESS IF UNABLE TO PERFORM UPON THIS AGREEMENT DUE TO WAR, RIOT, ACTS OF GOD, ETC. (FORCE MAJEURE).
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING CUSTOMER ACKNOWLEDGES AND AGREES THAT TransACT IS NOT RESPONSIBLE OR LIABLE FOR CONTENT ADDED, OR POSTED, TO THE SERVICE OR THE SERVICE MATERIALS BY A THIRD-PARTY OR BY CUSTOMER.
TransACT or CUSTOMER may terminate this Agreement upon written notice to the other no sooner than sixty (60) days, but no later than thirty (30) days, prior to the expiration of a term. Upon termination, TransACT may, in its sole discretion, require CUSTOMER’S Chief Executive Officer or superintendent to verify in writing that all Service Materials in CUSTOMER’S possession have been returned to TransACT or destroyed.
No refunds shall be given once CUSTOMER has accessed the Service Materials. Subscription Fees paid by credit card cannot be disputed once CUSTOMER has accessed the Service Materials.
TransACT reserves the right to refuse access to anyone prior to entering into a use agreement. An enrollee or CUSTOMER that enrolls, pays a subscription fee and is then terminated or cancelled by TransACT shall receive a full or prorated refund of the paid subscription fee.
All notices under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by confirmed facsimile transmission, or sent by certified or registered U.S. mail or nationally-recognized express courier, return receipt requested. If to TransACT, at the following address:
TransACT Communications, Inc.
Attn: Richard Passovoy
5105 200th Street SW, Suite 200
Lynnwood, WA 98036-6397
Unless directed otherwise in writing by CUSTOMER, TransACT shall send all notices to CUSTOMER’S billing address.
This Agreement shall be governed by and construed under the laws of the State of Washington without regard to its conflicts of law principles. The failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver of any other right contained herein. Neither party may bring a lawsuit or other formal legal proceeding for a dispute arising pursuant to or in connection with this Agreement without first making a good faith effort to resolve the dispute through mediation before a third-party neutral mediator trained or certified as such. Unless otherwise agreed to in writing by the parties, any such mediation shall be held in the city where the responding party’s main office is located. The parties agree to share equally the cost of mediation; provided, however, that each party shall pay their own attorney fees and costs. In the event that the parties are unsuccessful in resolving the dispute through mediation, a lawsuit may be filed. The exclusive jurisdiction and venue for any such lawsuit to interpret or enforce this Agreement shall be a court of competent jurisdiction located in King County, Washington. CUSTOMER hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in King County, Washington. The prevailing party in any such lawsuit shall be entitled to its reasonable attorney fees and costs.