Terms and Conditions of Use
The authorized purchaser (the "Subscriber") hereby agrees to this Subscriber Agreement (the "Agreement").
- WriteToLearn™ (the "Service") is a web-based service offered by NCS Pearson, Inc. ("Pearson") providing automated assessment of summaries and essays and reporting for students and teachers through use of a writing skills and reading comprehension development tool.
- Subscriber is granted a limited, non-exclusive, non-transferable, revocable license, for a subscription period consistent with the fees paid by Subscriber, permitting authorized individuals (the "Users"), identified by Subscriber, access to the Service.
- Subscriber will ensure that Users meet the then-current minimum hardware and software requirements for using the Service, and is responsible for configuring its computer systems so that they interface properly with the Service. Copies of Pearson's minimum hardware and software requirements for using the Service are available upon request. Subscriber acknowledges and agrees that these minimum hardware and software requirements are subject to change over time as operating systems, browsers, and other technologies evolve. Pearson shall have no obligation to Subscriber in the event that Subscriber is unable to access the Service due to a failure to maintain an operating environment consistent with Pearson's then-current minimum hardware and software requirements.
- Subscriber's additional responsibilities are as follows:
- Issue to its Users unique access ids and passwords after WriteToLearn teacher accounts have been established.
- Disseminate information to Users regarding access to and use of the Service.
- Subscriber agrees to take all necessary precautions regarding the privacy of User information, essays, and score data. Subscriber is responsible for obtaining any parental consent that may be required under applicable laws in order to provide student identifying data to Pearson. Pearson agrees to exercise commercially reasonable efforts to maintain as confidential and use solely as necessary for purposes of performing this Agreement all Subscriber data that is disclosed to Pearson or is stored on servers hosting the Service. Such commercially reasonable efforts shall include the use of commercially available encryption technology for transmission of Subscriber data and the use of commercially available password protection technology within the Service; however, Subscriber acknowledges that user identifications and passwords to access its data will be controlled and managed by the Subscriber and not by Pearson.
- Subscriber authorizes Pearson to use non-personally identifiable student assessment results on an aggregated basis for research and analytical purposes.
- Pearson will provide a User manual in electronic format containing Service information.
- The Service will generally be available to Users on a 7x24 basis; however, Subscriber acknowledges that Pearson may take the Service down from time to time to perform maintenance or upgrades. In addition, Subscriber acknowledges that from time to time the Service may be inaccessible or inoperable due to errors or causes beyond the control of Pearson or which are not reasonably foreseeable by Pearson, including, but not limited to: the interruption or failure of telecommunication or digital transmission links; hostile network attacks; network congestion; or other failures (collectively "Downtime"). Pearson will use commercially reasonable efforts to perform scheduled maintenance and/or upgrades at times when usage of the Service is generally low, and to minimize any disruption, inaccessibility and/or inoperability of the Service caused by Downtime.
- Pearson will maintain and provide Subscriber with access to essay and score data for Subscriber's current contract period. It is Subscriber's responsibility to preserve essay and score data from previous contract periods or for archival purposes.
- The Service is offered by Pearson under two subscription pricing models. If Subscriber is licensing the Service under Pearson's per-student subscription model, each registration of a student to use the Service will use up one of Subscriber's paid registrations. Pearson will monitor the number of registrations and notify Subscriber when remaining unused registrations reach a low point. The Service will be unavailable for additional registrations when all of the Subscriber's registrations have been used. Once assigned to a particular student, student subscriptions cannot be transferred from that student to a different student. If Subscriber is licensing the Service under Pearson's concurrent user subscription model, then the number of students using the Service at any given time will be limited to the number of concurrent user subscriptions licensed by the Subscriber.
- WriteToLearn subscription fees must be prepaid. These fees are based on the number of subscriptions (whether per-student registrations, when using the per-student subscription model, or concurrent user subscriptions, when using the concurrent user subscription model) being purchased by Subscriber. All fees are payable within thirty (30) days of invoice date. Applicable taxes will be applied at time of invoicing. Any unused subscriptions at the end of Subscriber's period will be forfeited. For the per-student subscription model, the number of subscriptions ordered may be increased at any time during the contract period at the request of Subscriber. These increased subscriptions will be assigned to the total number of current subscriptions; however, the contract period will not be extended with the additional subscriptions on an existing contract. For the concurrent user subscription model, added subscriptions may run for different subscription periods than the original subscriptions. In all cases, additional subscriptions will be calculated at the prevailing contract rate. Renewal rates will be at Pearson's current prices at the time of renewal.
- This Agreement is effective on the date that the Service has been set up by Pearson and made available to Customer to use, and will remain in effect up to the last business day of the final month of the contract period. Pearson may terminate this Agreement by providing Subscriber with written notice in the event that Subscriber fails to pay the fees which are deemed payable, fails to abide by the restrictions on the use and disclosure of the Service, or breaches any other term or condition of this Agreement. Subscriber may terminate this Agreement by providing sixty (60) days written notice to Pearson. Fees paid are non-refundable. The terms of this Agreement shall continue to apply to any renewal of Subscriber's use of the Service, unless Pearson supplies updated terms to Subscriber in connection with such renewal, in which case such updated terms shall apply.
- Subscriber is responsible for the actions of its Users. The Service may not be used for any purpose except as expressly permitted by this Agreement. Subscriber may not resell, assign, or otherwise transfer this Agreement or its rights or obligations hereunder.
- Pearson will retain ownership of all intellectual property rights pertaining to the Service, including the WriteToLearn software, the Pearson essay topics, and all related documentation, as well as any other Pearson material, software programs and associated techniques, concepts, and methodologies (collectively known as "Intellectual Property") that may be used to provide the products and services under this Agreement.
- DISCLAIMER OF WARRANTIES: PEARSON WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE PERFORMANCE OF THE SERVICE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. HOWEVER, PEARSON DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. PEARSON DOES NOT WARRANT THAT THE SERVICE OR SUBSCRIBER'S USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. PEARSON CANNOT CONTROL THE FLOW OF DATA TO OR FROM PEARSON'S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT USERS' AND/OR PEARSON'S CONNECTIONS TO THE INTERNET.
- LIMITATION OF LIABILITY: PEARSON WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. PEARSON'S LIABILITY FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING OUT OF THIS CONTRACT WILL BE LIMITED TO ACTUAL, DIRECT DAMAGES ONLY, NOT TO EXCEED THE TOTAL AMOUNT OF MONEY PAID BY SUBSCRIBER TO PEARSON FOR THE SERVICE, OR OTHER ITEM OR MATERIAL ON WHICH THE CLAIM IS BASED, DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE LOSS OR INJURY.
- Force Majeure: Pearson will not be liable for any failure to fulfill its obligations hereunder due to causes beyond its control. However, if Pearson's performance is delayed for a period in excess of sixty consecutive days, then Subscriber may terminate this Agreement upon written notice and receive a refund of any unused subscription fees (calculated on a prorated basis from the date of termination through the remainder of Subscriber's applicable subscription period).
- This Agreement will be construed under the laws of the State of Minnesota, without regard to its conflict of laws provisions.
- This Agreement constitutes the complete agreement between Pearson and Subscriber.