Terms and Conditions
These Terms and Conditions and any exhibit (together, the “Agreement”) collectively constitute a binding agreement between Journify Learning, Inc., a Delaware corporation (“Journify”), and you and the legal entity you represent, such as a school or school district (“Customer”). Each of Journify and Customer may be referred to individually as a “Party” and collectively as the “Parties.” The “Effective Date” of this Agreement will be the earlier of (a) Customer’s acceptance of the terms of this Agreement by clicking on the “Create Account” button, or (b) Customer’s use of the Service (defined below).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICE. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF PORTION OF THE SERVICE, YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH JOURNIFY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY AND ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT ENTITY TO THE AGREEMENT. THE TERM “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.
Definitions
1. Definitions.
“Aggregated and De-identified Data” means aggregated, anonymized or deidentified data or information of similar form, derived from Customer Content, that is created by or on behalf of Journify, by excluding information (including Customer’s name) that make the data contained therein personally identifiable to Customer or any Authorized User.
“Authorized User” means any individual authorized by Customer to access and use the Service including employees, teachers, aides, other school personnel.
“Customer Content” means all data, images, and content submitted, transmitted, or uploaded by or on behalf of Customer and its Authorized Users into the Service.
“Output” means analytical results, output data, and other content generated by the Service.
“Service” means Journify’s proprietary software-as-a-service platform powered by artificial intelligence and designed to assist educators with special education workflows.
“Third-Party Services” means any third party-provided applications, software, products, or services which Journify embeds in, incorporates into, or otherwise leverages in connection with its provision of, the Service.
“Third-Party Service Provider” means the applicable third-party provider of a Third-Party Service.
2. Journify Responsibilities
2.1 Provision of the Service. Subject to the terms and conditions of this Agreement and during the Term, Journify will: (a) make the Service available to Customer for use by Authorized Users solely for educational purposes; and (b) provide Customer with Journify’s standard support services to assist Customer in its use of the Service. The terms of this Agreement will also apply to updates and upgrades of the Service subsequently provided by Journify to Customer. Journify may update the functionality, user interfaces, and usability from time to time in its sole discretion as part of its ongoing mission to improve the Service.
2.2 Support. Subject to the terms of this Agreement, Journify shall use commercially reasonable efforts designed to maintain the availability of the Service.
2.3 Compliance with Laws. Journify will comply in all material respects with laws applicable to Journify’s provisioning of the Service.
3. Access to and Use of the Service
3.1 Account Creation and Subscriptions. Each Authorized User will create a unique user identification name and password to access and use the features and functions of the Service. Authorized User accounts cannot be shared or used by more than one Authorized User. Customer is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Authorized User accounts. If any Authorized User is no longer an employee or contractor of Customer, then Customer will promptly delete such Authorized User account and otherwise terminate such Authorized User’s access to the Service.
3.2 Customer Responsibilities. Customer will: (a) obtain any licenses, permissions and consents required for Authorized Users to submit, access, and use the Customer Content, including student Individualized Education Programs (“IEP”), in connection with the Service; (b) be responsible for Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, completeness, appropriateness, and legality of Customer Content; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and promptly notify Journify of any such unauthorized access or use; (e) provide feedback to Journify regarding the Services from time to time as reasonably requested by Journify; and (f) use the Service only in accordance and compliance with all applicable laws and government regulations. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other usernames and passwords required in order the access the Service. Customer is encouraged to make its own back-ups of the Customer Content and Output. Customer is solely responsible for maintaining copies of original IEPs outside the Service. Any act or omission by an Authorized User that, if done by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.
3.3 Necessary Equipment and System Requirements. Customer must provide all equipment necessary to connect to the Service, including but not limited to a device that is suitable to connect with and use the Service. A high-speed Internet connection is required for proper use of the Service. Customer is responsible for procuring and maintaining the network connections that connect its network to the Service, including, but not limited to, browser software that supports protocols used by Journify, and following procedures for accessing services that support such protocols. Journify assumes no responsibility for the reliability or performance of any connections as described in this Section.
3.4 Usage Restrictions. Customer will not, and will not permit any Authorized User or third party to directly or indirectly: (a) make the Service or Output available to, or use the Service for the benefit of, anyone other than Customer and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, rent, resell, time share, or similarly exploit the Service or Output; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) decompile, disassemble, reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks, source code, algorithms, or associated know-how of the Service; (f) copy or modify the Services, or create any derivative works from either of the foregoing; (g) alter or remove any trademarks or proprietary notices contained in or on the Service; (h) circumvent or otherwise interfere with any authentication or security measures of the Service or otherwise interfere with or disrupt the integrity or performance of the foregoing; (i) write or develop any program based on the Service or any portion of the foregoing, or otherwise access or use the Service in any manner for the purpose of developing, distributing or making available products or services that compete with the Service; or (j) otherwise use the Service for any purpose other than as expressly permitted hereunder.
3.5 Third-Party Services; Disclaimers. The Service may include certain features that leverage Third-Party Services that utilize artificial intelligence technology (“AI Features”). Customer acknowledges and agrees that Customer Content will be transmitted to such Third-Party Services and that, as between the Parties, Customer is solely responsible for its and its Authorized Users’ use of all AI Features. Customer accepts that, as AI Features utilize artificial intelligence technology, such features may provide Output that is inaccurate or inappropriate as a response to the input provided. Due to the nature of machine learning, Output may not be unique across users and the Service may generate the same or similar output for Journify or a third party. Other Journify customers may also provide similar customer prompts as inputs to the Service and receive generated content that is similar or identical to Output. Customer has no right, title or interest in or to generated content provided to other parties, regardless of the level or degree of similarity. Customer is responsible for evaluating the accuracy and suitability of Output as appropriate for Customer’s use case, assessing any potential biases, and subjecting Output to Customer’s standard quality control procedures within its business, including by using human review of Output. Customer agrees, and shall cause its Authorized Users to agree, that Journify shall have no responsibility or liability arising from the provision of inaccurate or inappropriate Output or any decisions made in reliance on such Output, and that such decisions are made at its own risk. Customer acknowledges and agrees that the use of Third-Party Services, including the transmission of certain Customer Content to such Third-Party Services, is an integral and necessary part of Journify’s delivery of the Service. Customer agrees that Journify shall have no responsibility or liability arising from any use, storage, data breach, or deletion of such Customer Content by Third-Party Service Providers. Journify cannot guarantee the continued availability of Third-Party Services and may temporarily or permanently cease providing, without entitling Customer to refund, credit, or compensation, any particular Third-Party Services if the applicable Third-Party Service Provider suspends, modifies, or alters such Third-Party Services.
4. Third-Party Integrations. If supported by Journify, the Service may integrate with services for which Customer has independently contracted (“Customer Third-Party Services”). If Customer elects to integrate its Journify account for which it is responsible hereunder with one or more Customer Third-Party Services supported by Journify, it shall ensure that it has all required permissions and authorizations to share such information with Journify for such limited purpose. Any integration with a Customer Third-Party Service depends on the continuing availability of, and access to such Customer Third-Party Service and/or any content or interfaces made available through such Customer Third-Party Service. If for any reason Journify cannot access or use the applicable Customer Third-Party Service or the required data or information interfaces, Journify may not be able to provide all of the functions of its Service. No refund or credit will be provided for unavailability of any Customer Third-Party Services. Unless otherwise specified in this Agreement, all content or data accessed through Customer Third-Party Services integrated hereunder will be considered to be Customer Content for purposes of this Agreement. Where Customer elects to create an integration between a Customer Third-Party Service (“Integration”) for use with Customer’s Student Information System (SIS), it agrees to: (a) apply minimum technical requirements and comply with the acceptable use parameters (e.g., requirements for usernames, passwords, password reset, end point maintenance, and testing environments); (b) promptly notify Journify of errors or vulnerabilities discovered in Customer’s Integration; and (c) assist Journify with verifying Customer’s adherence with the requirements of this Section 4, including permitting an audit up to once annually on 30-day notice, or such audits as are required for cause. The Integration may be terminated by Journify on reasonable notice in its sole discretion.
5. Fees.
5.1 Fees, Invoicing, and Payment. Unless separately agreed to by the Parties, the Services are not currently fee-based for Customer and its Authorized Users, however Journify retains the right to implement a fee structure in the future subject to providing notice in accordance with Section 12.1. If the Parties have separately agreed to a fee, Customer will pay all fees specified in the separate agreement. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. All fees will be invoiced by Journify in accordance with the terms set forth separately. Full payment for invoices issued must be received within thirty (30) days from Customer’s receipt of the invoice. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, Journify reserves the right to apply a finance charge of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.
5.2 Taxes. The fees are exclusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Journify’s net income). Should any payment for the services provided by Journify be subject to withholding tax by any taxing authority, Customer will reimburse Journify for such withholding tax.
5.3 Payment via Credit Card. If Customer is purchasing a subscription to the Service via credit card, debit card or other payment card (“Payment Card”), the following terms apply:
5.3.1 Recurring Billing Authorization. Customer’s credit card agreement governs its use of the designated credit card or account. By providing Journify with credit card information, Customer agrees that Journify is authorized to invoice and charge Customer’s account for all fees and charges due and payable to Journify and that no additional notice or consent is required.
5.3.2 Invalid Payment. If a payment is not successfully settled due to expiration of a Payment Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Journify and Journify may, in its sole discretion, (a) invoice Customer directly for the deficient amount, (b) continue billing the Payment Card once it has been updated by Customer (if applicable), or (c) terminate this Agreement.
6. Journify Proprietary Rights
6.1 Journify Property. Subject to Customer’s rights in the Customer Content, Journify reserves and retains, and as between Journify and Customer, Journify exclusively owns, all rights, title, and interest in and to the Service, and all other Output generated in connection with the Services (collectively, “Journify Materials”), including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Journify hereunder other than as expressly set forth herein. To the extent that Customer has or acquires any right (including intellectual property rights), title or interest in or to such Journify Materials, or any improvements or derivatives thereof, Customer hereby assigns the same to Journify, and covenants to execute all documents reasonably requested by Journify to confirm the same. If Customer or any Authorized User provides Journify with any feedback or suggestions regarding the Service, then Customer grants Journify an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User.
6.2 Generic Tools. Prior hereto and/or during the course of this Agreement, Journify has and/or will develop certain coding, programming or designing techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, templates, other know-how and related intellectual property rights, which Journify may use on other projects as part of the tools of Journify’s business and that such developments and intellectual property rights shall constitute “Generic Tools,” so long as, and to the extent that, they do not include any Customer Content. The Parties acknowledge and agree that Journify’s other customers may modify (or request modification of) the Generic Tools in similar manners and nature as Customer and nothing in this Agreement prohibits such activities. Journify retains all right, title and interest in and to Generic Tools and associated intellectual property rights as may be made available to Customer under this Agreement.
6.3 Performance Data. Journify may create, generate, and use general performance and usage data in connection with Customer’s use of the Service (such as technical logs, account and login data, and processed volumes) (“Performance Data”), in each case, for the purposes of training, improving and analyzing the Service and its associated software, technology and algorithmic models. Journify retains all right, title, and interest, including all intellectual property rights, in and to Performance Data. For purposes of this Agreement, Performance Data does not contain any and does not constitute Personal Data (as defined in Exhibit A).
7. Customer Proprietary Rights
7.1 Customer Content. As between Customer and Journify, Customer owns all rights, title, and interest in and to the Customer Content. Customer grants to Journify a worldwide, non-exclusive, royalty-free limited license during the Term to access, use, copy, store, distribute, transmit, modify, perform, display, and create derivative works of Customer Content only: (a) to provide, maintain, and update the Service and other Journify offerings; (b) to prevent or address service or technical problems; (c) as compelled by law; (d) as expressly permitted in writing by Customer; (e) to create Performance Data and Aggregated and De-identified Data and to use such data during and after the Term, for any legal purpose, including to improve the Service and Journify’s offerings; and (f) to provide necessary access to Third-Party Service Providers acting on Journify’s behalf, such as providers of AI Features, provided that such Customer Content shall not be used by Journify’s providers as training data for AI models. Subject to the limited licenses granted herein, Journify acquires no right, title or interest under this Agreement in or to any Customer Content.
8. Confidentiality
8.1 Definition. “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Journify includes the Service (including its software and content), and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
8.2 Protection. The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
8.3 Compelled Disclosure. The Receiving Party may access or 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 access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure.
8.4 Privacy and Security. The Parties agree that they each will comply with their respective obligations as required under the Data Protection Addendum, (DPA), attached as Exhibit A, and which is incorporated into and forms part of this Agreement. To the extent the DPA conflicts with the provisions of this Agreement, the DPA will prevail.
9. Representations, Warranties, and Disclaimers
9.1 Mutual Representations. Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
9.2 By Customer. Customer represents and warrants that (a) it has obtained and will maintain all rights, consents, and permissions necessary for Customer to make available the Customer Content to Journify for its use as contemplated herein; (b) the Customer Content does not include any of the following: (i) export controlled materials; or (ii) data regulated by the Health Insurance Portability and Accountability Act, the Gramm Leach Bliley Act, or the EU General Data Protection Regulation or any successor laws; and (c) that no Customer Content will violate or infringe any third-party intellectual property, publicity, privacy or other rights, or any applicable laws.
9.3 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLCIABLE LAW, THE SERVICE, OUTPUT, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND JOURNIFY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. JOURNIFY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER’S OR ANY AUTHORIZED USERS’ REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) JOURNIFY AND THE SERVICE ONLY PROVIDE INFORMATION AND OUTPUT TO ASSIST CUSTOMER; AND (II) CUSTOMER BEARS ALL RESPONSIBILITY, AND JOURNIFY WILL HAVE NO LIABILITY FOR, DECISIONS BASED ON ANY OUTPUT OR ANY OTHER INFORMATION PROVIDED TO CUSTOMER VIA THE SERVICE OR BY JOURNIFY.
THE SERVICE IS INTENDED AS AN OUTPUT GENERATION TOOL ONLY AND DOES NOT CONSTITUTE ADVICE OF A CERTIFIED OR QUALIFIED EDUCATIONAL PROFESSIONAL AND JOURNIFY MAKES NO WARRANTY OR GUARANTY THAT THE OUTPUT OR PUBLIC APPS WILL PROVIDE ACCURATE, TAILORED, OR INFORMATIVE RESULTS OR BE FIT FOR ANY PARTICULAR PURPOSE. JOURNIFY DOES NOT REPRESENT OR WARRANT THAT THE OUTPUT OR PUBLIC APPS DO NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT THE AI FEATURES LEVERAGE THIRD-PARTY SERVICES AND THAT JOURNIFY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD JOURNIFY LIABLE, FOR THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S AND AUTHORIZED USERS’ USE OF THE SERVICE AND ANY OUTPUT RESULTING THEREFROM. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S SPECIFIC USE CASE.
FROM TIME TO TIME, JOURNIFY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS CUSTOMERS AND THEIR AUTHORIZED USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT JOURNIFY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
10. Indemnification
10.1 Journify Indemnification. Journify will defend Customer from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Journify will indemnify Customer for any damages and any reasonable attorneys’ fees finally awarded against it arising from such lawsuit or proceeding; provided, however, that Journify will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Content, any Third-Party Services, or any other third party-provided products, services, or data; (b) Customer’s or any of its Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed by Journify.
10.2 Customer Indemnification. Customer will, to the extent permitted by applicable law, defend Journify from and against any lawsuit or proceeding brought by a third party to the extent alleging (a) Customer’s breach of Sections 3.2, 3.4, or 9.2, (b) that any Customer Content infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or (c) Customer’s or any Authorized User’s particular use of the Service or use or provision of any Customer Content violates any applicable laws or government regulations, and Customer will indemnify Journify for any damages and any reasonable attorneys’ fees finally awarded against it arising from such lawsuit or proceeding; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Journify’s negligence, misconduct, or breach of this Agreement.
10.3 Procedures. The indemnified Party will provide the indemnifying Party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified Party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying Party’s defense of such matter. The indemnifying Party may not settle any such lawsuit or proceeding without the indemnified Party’s prior written consent.
10.4 Exclusive Remedy. This Section 10 states the indemnifying Party’s sole liability, and the indemnifying Party’s exclusive remedy, for any type of claim described in this Section 10.
11. Limitation of Liability
11.1 Exclusion of Certain Damages. SUBJECT TO SECTION 11.3, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11.2 Liability Cap. SUBJECT TO SECTION 11.3, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO JOURNIFY IN THE TWELVE MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
11.3 Exclusions. THE LIMITATIONS OF LIABILITY IN SECTION 11.1 AND THE CAP ON LIABILITY IN SECTION 11.2 DO NOT APPLY TO (A) DAMAGES ARISING FROM A BREACH BY A PARTY OF SECTION 3.2, 3.4, 8, OR 9.2; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; AND (C) ANY DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
11.4 Scope. For the avoidance of doubt, the exclusions and limitations set forth in this Section 11 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in this Section 11 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
12. Term, Termination, and Suspension
12.1 Term of the Agreement. This Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the one (1) year (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive additional periods of one (1) year each (each, a “Renewal Term”) unless either Party provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term. Customer agrees that Journify may implement or modify the fees for each Renewal Term by providing Customer with written notice of such modification at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the “Term.”
12.2 Suspension. Journify may suspend Customer’s or any or all Authorized Users’ access to the Service, in whole in part, if: (a) Customer or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) Customer’s or any Authorized Users’ systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Journify’s reasonable discretion, to protect the security of the Service or Journify’s infrastructure; (d) suspension is required by applicable law; or (e) if applicable, any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are thirty (30) days or more overdue.
12.3 Termination for Cause. Either Party may terminate this Agreement effective after thirty (30) days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such thirty (30)-day period. Upon any termination for cause by Customer, Journify will promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by Journify, Customer will promptly pay Journify any unpaid fees covering the period remaining in the Term after the effective date of such termination.
12.4 Effects of Termination. In no event will any termination of this Agreement relieve Customer of its obligation (if applicable) to pay any fees payable to Journify for the period of time prior to the effective date of such termination. Upon any termination of this Agreement, Customer and all Authorized Users must immediately cease all use of the Service. For a period of thirty (30) days following any termination of this Agreement, Journify will, upon Customer’s request, provide Customer with an export of all current Customer Content in the format agreed by the Parties. After such thirty (30)-day period, Journify will have no obligation to maintain or provide any Customer Content and Journify may, unless prohibited by applicable law, delete all Customer Content in its systems or otherwise in its possession or under its control in accordance with Journify’s then-current data retention and deletion policies. Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
12.5 Survival. The following sections will survive any termination or expiration of this Agreement: 1, 3.2, 3.4, 3.5, 4, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5, 13, and 14.
13. Dispute Resolution & Governing Law. This Agreement and any dispute arising from or relating to this Agreement are governed by the laws of the State of [Delaware], without regard to its conflict of law principles. Customer further agrees to accept service of process by mail. To the extent the Parties are permitted under this Agreement to initiate litigation in court, the Parties’ consent to exclusive personal jurisdiction and venue in the state and federal courts located in [Delaware]. If Customer is a United States public educational institution, domiciled in a state within the United States that expressly requires a choice of law other than [Delaware] state law, then the laws of Customer’s state will apply. If Customer is a United States public educational institution domiciled in a state within the United States that expressly requires venue or jurisdiction of a state other than [Delaware], then the required venue and jurisdiction so required by Customer’s state will apply.
14. General Provisions
14.1 Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.
14.2 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
14.3 Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
14.4 Notices. All notices under this Agreement will be in writing and (a) if to Customer, addressed to the Customer at the addresses set forth on the Order Form and (b) if to Journify at [insert address], and will be deemed to have been duly given: (i) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; or (ii) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
14.5 Relationship of the Parties; Third-Party Beneficiaries. The Parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
14.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
14.7 Subcontractors. Journify may use one or more third parties to fulfill any of its obligations hereunder, provided that with respect to any such obligations that are subcontracted to or provided by any third party, Journify expressly assumes all liability and responsibility for such third party’s compliance with, including, without limitation, any breach of, the terms of this Agreement.
14.8 Entire Agreement. This Agreement, including any addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter hereof. No modification, amendment, or waiver of any provision of an Order Form will be effective unless in writing and signed by each of the Parties. Journify may modify these Terms and Conditions on a going forward basis from time to time by posting the modified Terms and Conditions to [insert URL], and any such modifications will take effect upon renewal of the then-current Term. To the extent of any conflict or inconsistency between these Terms and Conditions, any exhibit attached hereto, or any Order Form, the terms set forth in these Terms and Conditions will control unless the conflicting term in the other document specifically references the inconsistent term of these Terms and Conditions, in which case the conflicting term will control only for the limited purposes set forth in the document containing such term. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.” Titles and headings of sections are for convenience only and shall not affect the construction of any provision of this Agreement.
Exhibit
Journify Data Protection Addendum
1. United States. With respect to Authorized Users in the United States, the following provisions shall apply.
2. Definitions. Capitalized words used in this DPA that are not expressly defined in this DPA have the meaning set forth in the Agreement.
a. “Data Protection Legislation” means applicable federal, state, local, and municipal laws and regulations in the United States that relate to the privacy, data protection or data security of Personal Data.
b. “Personal Data” means information about a specific individual that is provided, submitted, or otherwise made available to Journify by or on behalf of Customer or any User in connection with any of the Service that constitutes “personal data”, “personal information”, “personally identifiable information” or similar term under applicable law.
c. “Process” shall have the same meaning as set out in the applicable Data Protection Legislation or if no such meaning or concept exists, it shall be the means by which Journify collects, uses, stores, discloses, or transfers Personal Data.
3. Compliance with Laws; Roles. Each Party shall comply with all Data Protection Legislation applicable to it in its respective Processing of Personal Data under the Agreement. For purposes of this Agreement and as between the Parties, Customer is the controller of the Personal Data and Journify is the processor of such data.
4. Notices and Consents. Customer shall provide all notices and obtain all such consents required under applicable Data Protection Legislation to allow Journify to Process the Personal Data to provide the Service and as otherwise described in the Agreement, including in this DPA (the “Notices and Consents”). Customer represents and warrants that it has obtained and will maintain the Notices and Consents for all Authorized Users through the entire term of the Agreement.
5. Details of Processing. Personal Data will be Processed for the purposes set forth in the Agreement and any applicable order form.
6. Journify Obligations.
a. Journify shall implement and maintain reasonable administrative, technical and organizational measures that are designed to preserve the confidentiality and availability of Personal Data Processed by Journify via the Service. Journify shall implement the technical and organizational measures (“Security Measures”). Customer agrees that such measures are appropriate taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data hereunder.
b. Journify shall take reasonable steps to train any employees who have access to the Personal Data are trained on applicable Data Protection Legislation and take reasonable steps that are designed to prevent employees from disclosing Personal Data for reasons other than those necessary for their Processing of the Personal Data.
c. Journify engages certain third-party entities to Process the Personal Data on Journify’s behalf ("Sub-processors"). A list of Sub-processors can be provided upon request. Journify shall enter into an agreement with each Sub-processor containing terms that offer substantially similar levels of data protection obligations and protection for Personal Data as those set out in this Section. Customer consents to Journify engaging the Sub-processors for the purposes set forth in the Agreement and this DPA.
d. If Journify becomes aware of a confirmed breach of its security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Personal Data (a “Security Incident”), Journify shall inform Customer, within a reasonable amount of time, taking into account the timeframes required by Data Protection Legislation, with respect to the Security Incident. Journify will provide, to the extent available reasonable information, cooperation, and updates of material developments to enable Customer to fulfill any data breach reporting obligations it may have under Data Protection Legislation. However, Journify provision of information and cooperation shall be at Customer’s cost and expense to the extent any Security Incidents were caused by Customer or its Authorized Users or Data Subjects (as defined below). Journify’s notification of a Security Incident pursuant to this section shall not be considered an acknowledgement of any fault or liability with respect to the Security Incident. Journify may take such other measures as it deems appropriate to mitigate the effects of the Security Incident.
7. Data Subject Inquiries. Customer shall be solely responsible for responding to and fulfilling any inquiries from Authorized Users and other data subjects, including parents and legal guardians of Customer’s students where the User is a student of Customer (collectively, “Data Subjects”) regarding their Personal Data in connection with the Processing under the Agreement, including any requests to exercise their rights under applicable Data Protection Legislation, and Customer shall handle all Data Subject inquiries in accordance with applicable Data Protection Legislation. Customer understands that Journify is not required to take any action in response to any requests from Data Subjects except to notify such Data Subjects to contact Customer. To the extent Customer cannot obtain a copy of, delete or amend the Personal Data directly within the Service, Customer may contact Journify and Journify, with Customer’s express written permission and provided Customer has obtained the appropriate consent from the applicable Data Subject, will provide a copy of, delete or amend such Data Subject’s Personal Data in accordance with Customer’s instructions. To the extent legally permitted, Customer shall be responsible for reasonable costs arising out of Journify’s provision of assistance with Customer’s Data Subject requests. Customer shall indemnify, defend, and hold harmless Journify and its affiliates, subsidiaries, successors and assigns (and the officers, directors, employees, sublicensees, customers, and agents of Journify and its affiliates, subsidiaries, successors, and assigns), from and against any and all losses, demands, liabilities, damages, fines, settlements, expenses, and costs (including without limitation reasonable attorneys’ fees and costs), arising from, in connection with, Journify complying with Customer’s instructions under this Agreement.
8. Authorized Disclosure of Personal Data. Customer acknowledges and agrees that, at Customer’s request and reasonable cost, Journify may provide Personal Data to third-parties or other entities to whom Customer requests Journify provide Personal Data (e.g., State Board of Education). Customer shall make such a request to disclose Personal Data in writing (“Authorization”). Customer acknowledges and agrees that each Authorization will result in Customer electing, in its sole discretion, to transfer the Personal Data to the recipients that Customer selects. The entities identified in Section 8(a) are collectively defined as “Recipients.”Customer acknowledges that Customer Content may contain Personal Data and may be subject to Data Protection Legislation. Customer will hold Journify harmless, and not liable in any way, for Journify’s disclosure of Personal Data to the Recipients in accordance with an Authorization. Journify makes no warranty (a) that the use of the Personal Data by the Recipient is valid or in compliance with applicable Data Protection Legislation and Customer’s organization’s policies or (b) that Personal Data will remain secure upon transfer to the Recipient, and disclaims any responsibility for the transfer. Customer acknowledges that the Personal Data will be provided on an “as is”, “as available” basis.
9. Data Retention. Journify will delete Personal Data within a reasonable amount of time after the termination or expiration of the Agreement, except that Journify may retain Personal Data as required by applicable legal requirements or as agreed by Customer. For the avoidance of doubt, the foregoing shall not apply to Anonymized Data (as defined below).
10. Journify Data. Customer acknowledges and agrees that Journify may create and derive performance, system, and operational data, aggregated data, anonymized data and de-identified data from Processing related to the Agreement, including in connection with the Service (collectively, “Anonymized Data”). In generating such data, Journify shall (a) take reasonable measures to ensure that such data cannot be associated with a Data Subject, and (b) not attempt to reidentify such data, except as permitted under Data Protection Legislation.
11. Education Records. As applicable, to the extent Journify has access to “Education Records” and “Personally Identifiable Information” (as those terms are defined in Family Education Rights and Privacy Act, 20 U.S.C. § 1232g and its implementing regulations, 34 C.F.R. Part 99 (together, “FERPA”)) in connection with its provision of the Service that is not otherwise permitted under FERPA: (a) Customer agrees that Journify has met the criteria for being a “School Official” with “Legitimate Educational Interests” (as those terms are used in FERPA) in such Education Records and Personally Identifiable Information; and (b) Journify agrees that such Education Records and Personally Identifiable Information will be used only for authorized purposes under the Agreement, and it will not redisclose such Education Records or Personally Identifiable Information except with Authorization from Customer or where such redisclosure is otherwise permitted under FERPA.
12. State Specific Privacy Addenda. If applicable, the Parties agree to the State Specific Data Protection Addenda for the applicable state(s).
13. Updates to this DPA. Notwithstanding anything to the contrary in the Agreement, Journify reserves the right to modify this DPA from time to time in its sole discretion and without Customer’s prior consent except where required by applicable law (“Updated DPA”). Customer agrees that any Updated DPA will be effective immediately upon Journify emailing the Updated DPA to Customer, unless Journify is required by applicable law to obtain Customer’s consent, in which case, such Updated DPA will be effective immediately upon the provision of such consent.
State Specific Addenda
California
With respect to Pupil Records (as defined in Cal. Educ. Code § 49073.1) that Journify processes on behalf of a Customer in California, the following provisions shall apply to the extent required by applicable law:
1. Pupil Records that Journify processes on behalf of Customer are the property of and under the control of Customer, except a User may retain possession and control of User-Generated Content where the User opens a personal account.
2. Journify shall limit its use of Pupil Records to those purposes specified in the Agreement and the DPA
3. Procedures for the review and correction of Pupil Records shall be in accordance with the DPA.
4. Journify shall implement, maintain, and use reasonable measures to ensure the security and confidentiality of Pupil Records as specified in the DPA.
5. Procedures for notification in the event of unauthorized disclosure of Pupil Records shall be in accordance with the terms of the DPA.
6. Journify certifies that retention of Pupil Records shall be limited in accordance with the terms of the DPA.
7. Journify’s and Customer’s access to and use of Education Records and Personally Identifiable Information (as defined in FERPA) shall be subject to the terms of the DPA.
8. Journify shall not use Personal Data in Pupil Records to engage in targeted advertising.
New York
With respect to personally identifiable information (as defined in N.Y. Comp. Codes R. & Regs. tit. 8, § 121.1(m)) (“NY PII”) that Journify processes on behalf of a Customer in New York, the following provisions shall apply to the extent required by applicable law (for the avoidance of doubt, NY PII is a subset of Personal Data as defined in the Agreement):
1. Journify certifies that its technologies, safeguards and practices align with the NIST Cybersecurity Framework.
2. Journify shall comply in all material respects with Customer’s data security and privacy policy and applicable state and federal laws.
3. Journify shall limit access to NY PII it processes on behalf of Customer in accordance with the DPA.
4. Journify shall limit its use of NY PII to those purposes specified in the Agreement and DPA.
5. Journify shall not disclose NY PII except in accordance with the DPA.
6. Journify shall implement, maintain, and use reasonable measures that are designed to ensure the security and confidentiality of NY PII as specified in the DPA.
7. Journify shall use encryption to protect electronic NY PII in transit or in storage.
8. Journify shall not sell NY PII and shall limit its use and disclosure of NY PII in accordance with the DPA.
9. Data Security and Privacy Plan
a. Journify will implement applicable data security and privacy requirements as specified in the DPA.
b. Journify shall implement, maintain, and use reasonable measures that are designed to ensure the security and confidentiality of NY PII as specified in the DPA.
c. A parent’s bill of rights is incorporated as part of this addendum, and Journify shall comply in all material respects with its terms.
d. Journify shall train its officers and employees on applicable laws prior to granting access to User data as specified in the DPA.
e. Journify shall require that Sub-processors protect NY PII and manage breaches and unauthorized disclosure as specified in the DPA.
f. Journify shall manage data security and privacy incidents as specified in the DPA. Procedures for notification in the event of breaches and unauthorized disclosures shall be in accordance with the terms of the DPA.
g. Journify retention of NY PII shall be limited in accordance with the DPA.
