End User Service Agreement (EUSA)
I. IMPORTANT NOTICE TO ALL PURCHASERS AND USERS...PLEASE READ CAREFULLY:
The terms "we", "us", and "our" refer to Vantage Labs, LLC, Vantage Learning USA, LLC, McCann Associates Holdings, LLC and/or Vantage OnDemand (INTL), Limited, the international distributor for McCann and Vantage or any of their affiliated companies (collectively "Vantage"). "You", "your", "grantee", "subscriber" or "end-user" refer to the individual and/or entity that has procured and/or who (which) accesses or uses Services whether the end-user has purchased and paid for Services directly or whether Services have been procured for the benefit of end-user access and use at no additional charge to such end-user. By way of example, an educational institution may pay for its administrators, teachers and students to access and use Services. Similarly, a corporation could pay for its employees to access and use Services. As an end-user, you are bound by the terms and conditions of this User Service Agreement whether you have paid directly for Services or whether your access and use of Services has been paid for by a third party. "Subscription Services" or "services" refer to software service application accessed by you via the internet. "Technical services" refers to support, consulting, or other services including customizations you have ordered (if any apply). The terms 'Subscription Services' or 'service(s)' may be used interchangeably within this document.
II. LEGAL AGREEMENT
This Vantage End-User Service Agreement ("Agreement") is a legal agreement between you (either an individual or a single entity subscriber) as Subscriber Licensee/Grantee and Vantage, Licensor/Grantor for use of the Service incorporating proprietary underlying Virtual Scoring Toolset™ and IntelliMetric® or other proprietary technologies and any related documentation. Services are accessed solely through use of the software services IP domain, web address and Application Protocol Interface (API) technology via the Internet. By using the Service, you agree to be bound by the terms of this Agreement and subscription. If you do not agree to the terms of this Agreement, you may not use the Service. The Service is licensed on a software-as-a-service basis through subscription, it is never sold. The terms and conditions for access to and use of Services include and protect any related documentation or materials that may be distributed to you or to which you may gain access as an end-user. Your access to and use of Services is authorized exclusively by Vantage at its sole discretion and is further contingent upon timely and seasonable payment of subscription and/or service fees as a condition precedent to initial and continued end-user access and use of such Services. Typically, the Service is procured on an entity-subscription or individual-use basis. For applicable details, check with the entity with which you are associated or employed and which has purchased Services for your related use. Pricing, fees, as well as the manner and timing of payment for Services may be governed collaterally by separate purchase order. For further details, check with the entity with which you are associated or employed and which may have purchased Services for your use. By using Services, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not use Services.
III. MODIFICATIONS TO SERVICES AND TERMS AND CONDITIONS OF USE
Vantage may at any time make modifications, changes, revisions, maintenance updates, enhancements and alterations to services or this User Services Agreement, without prior notice. Subscribers are responsible for regularly reviewing this Agreement. Your continued use of Services following any modifications, changes, revisions, maintenance updates, enhancements, and alterations shall constitute your acceptance of each modification, change, alteration and the like.
IV. WHAT THIS SUBSCRIPTION AGREEMENT COVERS
Domestic and Foreign Intellectual Property statutes, treaties, conventions, protocols and agreements, including copyright laws (collectively "Intellectual Property law") protect the Service. The Service is accessed exclusively on a subscription basis, it is not sold; College Success is not a 'product', it is a pure service. As a subscriber, you acknowledge, assent to and agree to abide by all Intellectual Property law pertaining to and protecting the Service. You must hold a valid subscription, which we assign to you, in order to use the Service.
Your order is not effective until accepted by us. Upon acceptance we grant you limited authority to access and use the Service on a personal subscription basis, i.e. only valid paid-up subscribers have authority to access and use the service. The Service is intended exclusively for the personal use of each individual paid subscriber. Sharing of subscription details, including username and password is strictly prohibited and shall be immediate cause for cancellation of service without notice. Your subscription will terminate at the end of your paid-up subscription period. The subscription may be subsequently renewed at the then current renewal price. Under certain circumstances, renewing subscribers may be eligible for discounts or other incentives - please see the heading 'SUBSCRIPTION RENEWAL' for important information regarding marketing, your assent to receive email and other marketing offers, incentives and other discounts that may apply to your subscription or subscription renewal.
V. OWNERSHIP AND PROPERTY RIGHTS
Vantage reserves the right to deal with and contract with whom it desires at its sole discretion. Access to and use of Services is a privilege granted exclusively by Vantage as Subscription Grantor. At its sole discretion, Vantage may monitor, cancel or limit your access to and use of Services without notice of any kind. Potential subscribers are subject to contractually-valid acceptance criteria established by Vantage. Subscriber understands and acknowledges that Vantage holds all right, title and interest to College Success, including, but not limited to, trade secret, patent, trademark and copyright in Subscription Services and documentation. Subject to the terms of this Agreement, Vantage grants to the individual subscriber who has paid for College Success, a non-exclusive non-transferable subscription to use Subscription Services during the term of this Agreement or the length of the term for which the subscriber has paid for the Service service, whichever is shorter. Additional or individual details and/or constraints or restrictions upon use of the Service may be contained with the Vantage Master Services Agreement Purchase Order attached separately herewith. Use of Services is limited to non-commercial, educational or valid business purposes only as agreed between Vantage and subscriber; you may access and use Services on a subscription or individual subscription basis depending upon how Services were purchased or procured. For applicable details, check with the entity with which you are associated or employed and which has procured Services for your related use.
VI. INTERNATIONAL SERVICES.
Services provided to clients outside the United States of America are fulfilled by Vantage OnDemand (INTL) Limited, the international distributor for all such services.
Upon your acceptance as an end-user/subscriber, Vantage grants to you a non-exclusive, non-transferable, limited authority to access and use Services on an individual subscription basis by use of a special username and password ("entry key") to be issued by Vantage and that shall be used only for purposes consistent with this Agreement and the pedagogic or other business nature and objectives for which Services were developed and procured. The entry key is Vantage confidential information as defined within this Agreement and should not be used for any purpose inconsistent with the terms and conditions of this Agreement or the technology itself. A subscription does not grant you any rights to use Vantage proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party products, applications, devices, materials and accessories for use with the Service or other Vantage technologies. Some of those rights may be available under a separate agreement from Vantage Associates. For more information, please contact Vantage.
You may not share or otherwise divulge the entry key assigned to you to any other person. Doing so will invalidate your subscription and may subject you to civil penalties. This subscription will terminate at the end of the service term shown on the Vantage Purchase Order you received after subscription (receipt), subscription agreement or contract between you or the entity with which you are associated or employed (if not purchased individually) and Vantage. The typical subscription service period runs for one (1) year from date of purchase.
The subscription may be subsequently renewed at the then current renewal price. Domestic and Foreign Intellectual Property statutes, treaties, conventions, protocols and agreements, including copyright laws (collectively "Intellectual Property law") protect the Services and all underlying technologies and connected intellectual property. As a subscriber, you acknowledge, assent to and agree to abide by all Intellectual Property law pertaining to and protecting Services and technology. In all cases, you must hold a valid subscription and a specifically assigned entry key in order to access and use Services. Only valid and paid-up subscribers have authority to access and use Services exclusively for personal use. A subscriber may use Services only for the time period for which subscription has been authorized by Vantage. Any attempt to use an entry key, transfer use of Services or actual use of Services by anyone other than the valid subscriber shall constitute a breach of this End-User Service Subscription Agreement and subscription and shall result in immediate termination of the subscription as described below under the heading 'Termination'.
Subscriber shall not cause any part of the Application in any way to be decompiled, disassembled or reverse engineered, reverse compiled or re-implemented nor shall any attempt to do so be undertaken or permitted. Subscriber agrees not to modify nor create a derivative of any part of the Services, underlying software application or components thereof nor remove, edit, copy, or modify any product identification, copyright or other notices. Intentional attempts to trick, deceive, mislead, fool or otherwise circumvent the legitimate purposes for which the Service has been purchased, including false or purposefully designed submissions calculated to test, reveal or expose underlying scoring technology or other product functionality ("false submission") shall be considered a breach of this subscription agreement and shall be cause for immediate cancellation of subscription without refund or reimbursement of any kind. Subscriber agrees not to modify nor create a derivative of any part of the Service, remove any product identification, copyright or other notices, create or aid in the creation of false submissions.
Without prejudice to any other rights, we may terminate this subscription if Subscriber breaches or fails to comply with any term or condition of this Agreement or associated collateral agreement. In such event, Subscriber shall immediately cease and desist from further use of any materials or documentation connected with Services and shall destroy and/or return, within the exclusive option of Vantage, all related or connected documentation or materials. Upon request of Vantage, terminated subscribers must provide a written statement acknowledging discontinued use of Services and documentation. Upon request of Vantage, terminated subscribers shall provide Vantage with a sworn verification as to subscriber's discontinued use of Services and return or destruction of such related documentation or materials.
IX. CONFIDENTIAL INFORMATION
For purposes of this Agreement, confidential information shall include: the entry key used exclusively by a single assigned end-user and all materials or documentation relating to or used in conjunction with the Service. Subscribers shall not use, disclose or otherwise disseminate to any other person or entity any Confidential Information or any copy or summary of any Confidential Information. Subscribers shall not remove or duplicate any Confidential Information or participate in any way in the removal or duplication of any Confidential Information without Vantage's prior written consent specifically to do the same. In the event that any party or its representatives is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any information supplied to such party in the course of its dealings with the other party or its representative, it is agreed that such party will provide prompt notice of such request or requirement to Vantage so that Vantage may seek an appropriate protective order and/or by mutual agreement waive compliance with any contrary provisions of this Agreement.
Upon the termination of this Agreement, at Vantage's discretion, subscribers shall destroy or return promptly to Vantage: (i) all copies thereof made; and (ii) all portions of all compilations, studies, notes, analyses and memoranda prepared in connection with the examination thereof or derived therefrom that contain or reflect any Confidential Information. Upon request of Vantage, subscribers shall provide Vantage with a sworn verification as to the return or destruction of such Confidential Information.
X. CALIFORNIA AB 1584 COMPLIANCE
In compliance with the requirements of the California AB 1584:
- Pupil records continue to be the property of and under the control of the school district;
- Pupils may retain possession and control and or transfer their own pupil-generated content, if applicable, to a personal account by contacting their school district, Vantage does not retain possession of pupil records upon completion of the scoring process;
- No information in the pupil record is used for any purpose other than those required or specifically permitted by the contract;
- Parents, legal guardians, or eligible pupils may review personally identifiable information in the pupil's records and correct erroneous information by contacting their school district, for no personally identifiable information is retained by Vantage upon completion of the scoring process;
- All staff of Vantage receive training regarding the security and confidentiality of pupil records;
- In the event of any unauthorized disclosure of pupil records, Vantage shall notify the affected parent, legal guardian, or eligible pupil through the affected pupils' school district;
- Vantage does not retain pupil records upon completion of the terms of the contract and all such pupil records, if any, are returned to the school or destroyed upon expiration of the term of the contract;
- Vantage and the school work together to jointly ensure compliance with the federal Family Educational Rights and Privacy Act; and;
- Vantage does not use any personally identifiable information in pupil records to engage in targeted advertising.
XI. LOUISIANA R.S. 17:3914(F) COMPLIANCE
In compliance with the requirements of Louisiana R.S. 17:3914(F):
- Vantage restricts access to Personally Identifiable Information to only those Vantage employees who are authorized by Vantage to have such access,
- Personally Identifiable Information is protected by appropriate security measures, and all protection methods are regularly audited,
- All Personally Identifiable Information is stored, processed and maintained in a secure location in the United States on designated servers and never on portable computing devices or media,
- All Personally Identifiable Information is solely used to achieve the purposes enumerated in the relevant contract or to improve said service and is not used or shared for any other purpose,
- Vantage maintains data breach response plans, organizational policies and procedures,
- Vantage has policies for the protection and storage of any audit logs,
- All confidentially provisions relevant to Louisiana school districts are extended to 15 years from date of execution,
- Upon termination of any contract with Louisiana school districts all Personally Identifiable Information will be sent in its original form to the applicable school upon written request.
XII. SPECIAL NOTES REGARDING ITEM/WRITING PROMPT AUTHORING TOOL AND COMPONENTS
Certain licensees, typically teachers and school administrators, may choose to use the MY Access! Item (Writing Prompt) Authoring Development Tool - and internal component technologies designed to create original item content (writing prompts) for use and inclusion within My Access!. As a licensee, you acknowledge, assent to and agree to abide by all Intellectual Property law pertaining to and protecting My Access! and/or any third parties. You acknowledge and warrant that your submission of test items and/or writing prompts shall be limited exclusively to your personal development and input of original item content ("item content"). Misuse of copyrighted and similarly protected intellectual property is a serious violation of law. You agree that you will not copy, reproduce, duplicate, import, borrow, cut and paste, or otherwise replicate nor disseminate any material from any other source other your own including, but not limited to, material found in text books, course curricula, state exams, published test items, items found on the internet, in manuals, training guides, or any other like materials notwithstanding your opinion of or reliance upon the legal doctrine of "Fair Use" of copyrighted materials. Any violation of this use may constitute a federal and/or state of foreign violation of law and shall constitute a breach of your MY Access!™ license that shall result in immediate termination of such license.
Licensees using the MY Access! Item (Writing Prompt) Authoring Development Tool and the Vantage Learning Platform (VLP)™ irrevocably grant to Vantage an exclusive royalty-free, transferable, unlimited and perpetual worldwide license to (i) use, reproduce, publicly perform, publicly display, demonstrate, market, disclose, distribute and prepare Derivative Matters of and compile item content on any media or via any electronic or other method now known or later discovered and (ii) to sublicense the foregoing rights to item content for use in production and support of Vantage's products or services and for any other lawful purpose. Vantage's exercise of this license grant shall be at Vantage's sole discretion and may be performed by Vantage directly or through Vantage designees.
XIII. LIMITED WARRANTY
VANTAGE WARRANTS TO SUBSCRIBER THAT SUBSCRIPTION SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH CURRENT FUNCTIONAL DOCUMENTATION. VANTAGE PROVIDES NO WARRANTY THAT THE USE OF SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. VANTAGE'S TOTAL LIABILITY WITH RESPECT TO THIS WARRANTY AND SUBSCRIBER'S SOLE REMEDY FOR BREACH OF THIS WARRANTY SHALL BE LIMITED TO SCORE CORRECTION OR REUSE OF SUBSCRIPTION SERVICES AT NO ADDITIONAL CHARGE TO SUBSCRIBER. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, SHALL APPLY, INCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. IN NO EVENT, HOWEVER, SHALL VANTAGE BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICE.
THE ABOVE IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY VANTAGE. VANTAGE MAKES AND SUBSCRIBER RECEIVES NO OTHER WARRANTY EXPRESS OR IMPLIED. THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE SET FORTH ABOVE, THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF VANTAGE FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE DELIVERY, USE OR PERFORMANCE OF ANY SUBSCRIPTION SERVICES OR INTELLECTUAL PROPERTY PROVIDED TO SUBSCRIBER BY VANTAGE.
LIABILITY UNDER NO CIRCUMSTANCES SHALL VANTAGE'S LIABILITY TO THE SUBSCRIBER HEREUNDER INCLUDE, NOR SHALL VANTAGE BE LIABLE FOR, ANY CLAIM OR DEMAND AGAINST VANTAGE BY A THIRD PARTY, EXCEPT AS SPECIFIED IN ABOVE, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR PRODUCTS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, TORT OR COVER DAMAGES HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM NEGLIGENCE OR FROM DELAY OF DELIVERY OR FROM LOSS OF DATA, BUSINESS OR GOODWILL, WHETHER OR NOT SUBSCRIBER HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement and the subscription granted hereunder may not be assigned, licensed, transferred or otherwise alienated by subscriber to any other party.
Use of Subscription Services is subject to current and seasonable payment of applicable participation and/or special fees, if any, by Subscriber. Failure to comply with payment terms in consideration of continued and valid subscription use shall be grounds for suspension, revocation or termination of subscriber's access to Subscription Services.
XVI. GOVERNING LAW and VENUE
The validity, interpretation and performance of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. Should any provision of this Agreement be determined by the courts to be illegal or in conflict with any law of the Commonwealth of Pennsylvania, the validity of the remaining provisions shall not be impaired. All disputes which arise in connection with this Agreement or any claimed breach thereof, shall be resolved, if not sooner settled, by litigation only in the Courts of Bucks County, Pennsylvania (or the Federal Court otherwise having territorial jurisdiction over such County and subject matter jurisdiction over the dispute), and not elsewhere, subject only to the authority of the Court in question to order changes of venue. Each party waives the personal service of any and all process upon it, and agrees that all such service or process may be made by certified or registered mail, return receipt requested, addressed to the other.
This Agreement constitutes the entire understanding between Vantage and the Subscriber with respect to the subject matter hereof and supersedes any prior agreements, understandings, negotiations or offers between them. Any modification or amendment of the terms of this Agreement shall not be binding upon either party unless such amendment or modification is in a written form signed by an authorized representative of each party.
ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY VANTAGE.
As evidenced, as the case may be, by my signature hereon or by my electronic acceptance in lieu of my signature, I confirm that I have received, reviewed, and accepted the applicable End User Service Agreement(s) (EUSAs) together with applicable schedules and exhibits associated with the services requested herein. I furthermore represent that I have authority to bind my organization (Client) to all of the terms and conditions of this Master Services Agreement Purchase Order, including relevant End User Subscription Agreements, schedules, exhibits, and attachments.