THIS SOFTWARE AS A SERVICE AGREEMENT (THE "AGREEMENT") GOVERNS THE USE OF FORTE EVALUATIONS (THE “SERVICES”). BY PURCHASING AND SUBSCRIBING TO THE SERVICES, YOU ARE CONSENTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT BETWEEN YOU AND FORTE GROUP, LLC. (HEREIN REFERRED TO AS “US” OR “OUR” OR “WE”), EFFECTIVE AS OF THE DATE OF YOUR CONSENT (THE “EFFECTIVE DATE”). FURTHERMORE, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “YOUR” SHALL REFER TO THE ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES.
FURTHERMORE, IF YOU ENGAGE IN THE PRODUCTION OR SALES OF EDUCATION, TEACHER EVALUATION, AND/OR PRINCIPAL EVALUATION SOFTWARE OR SERVICES, YOU MAY NOT USE THE SERVICES WITHOUT OUR PRIOR WRITTEN CONSENT. UNDER NO CIRCUMSTANCES MAY YOU ACCESS OR USE THE SERVICES FOR THE PURPOSE OF MONITORING ITS AVAILABILITY, PERFORMANCE OR FUNCTIONALITY.
"Access" means to connect to the Services either directly or indirectly through any network including the internet.
"Content" means any data, information or material submitted by you related to the Use of the Services or for processing through the Services.
"Documentation" means all documentation, technical manuals, functional manuals, operator and user guides and manuals, flow diagrams, file descriptions and other written information describing the functions, operational characteristics and specifications of the Services or other technology, or explaining how to Use or Access the Services or other technology.
"Server Environment" is defined as any server system that consists of one or more server software processes, operating independently or otherwise, including but not limited to report servers, web servers, database servers, terminal servers, mail servers, application servers or transaction servers, facilitated by an internet, intranet, extranet, client/server network, wide-area network, or any other multi-user network.
"Term" means the fixed period of time, starting from the Effective Date and ending on a date as required by this Agreement, during which you are authorized to Use or Access the Services.
"Use" means to load, execute, employ, utilize, store, or display the Services.
In accordance with the terms herein, we grant to you and you accept from us, a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide limited right to use the Services, solely for your internal operations and subject to the terms of this Agreement.
These rights allow you to use the Services installed on a Server Environment which is hosted by or on behalf of us. We reserve the right to change the Server Environment from time to time as it may deem fit. You acknowledge that we have no delivery obligation and will not ship copies of software associated with the Services to you. You agree that you do not acquire under this Agreement any license to use or receive copies of any such software outside the scope or duration of the Services provided under this Agreement.
The Term of this Agreement shall begin on the Effective Date and end 1 day following the Expiry Date (collectively “the Term”) unless either Licensor or Licensee terminates this agreement pursuant to Section 9 of this agreement.
You retain all ownership and intellectual property rights in and to your Content. We retain all ownership and intellectual property rights to the Services and all associated software, including the right to modify the Services and grant you the right to Use the Services. You retain all ownership and intellectual property rights in and to anything developed and delivered pursuant to your Use of the Services.
The Documentation describes the use of Forte Evaluations in conjunction with the Services. Your right to use Forte Evaluations is governed by the terms of the software licensing agreement associated with Forte Evaluations. You may not use any other third-party software to Access or Use the Services without our prior written consent, and in any event, any such third-party software use shall be subject to the terms and conditions of any associated software licensing agreement.
The Services and associated software and Documentation contain copyrighted material, trade secrets and other proprietary material. You shall not:
Furthermore, the rights granted under this Agreement are also conditioned on the following:
We warrant that the Services will be provided substantially in accordance with the applicable Documentation; provided, that (a) the Services are Accessed and Used in accordance by all instructions provided by us; (b) you notify us of any defect within ten (10) calendar days after the appearance thereof; and (c) you have paid all amounts due hereunder and are not in default of any provision of this Agreement. If the Services are found defective, our sole obligation under this warranty is to remedy such defect in a manner consistent with our regular business practices.
WE DO NOT WARRANT THAT: (A) THE OPERATION OF THE SERVICES (OR ASSOCIATED SOFTWARE OR HARDWARE OR NETWORK) WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE SERVICES WILL OPERATE IN COMBINATIONS OF SOFTWARE OR HARDWARE OR NETWORKS THAT YOU MAY SELECT TO USE IN CONJUNCTION WITH THE SERVICES; (B) THE SERVICES WILL BE FREE OF VIRUS, TROJANS OR OTHER SUCH HARMFUL OR MALICIOUS CONTENT; (C) THE SERVICES ARE INCAPABLE OF BEING HIJACKED; (D) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (E) ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH OR GENERATED BY THE SERVICES WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE.
THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY US. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENT AND THE SERVICES AND ANY ASSOCIATED SOFTWARE PROVIDED TO, USED OR ACCESS BY YOU, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
All information, data, drawings, specifications, documentation, software listings, source or object code which we may have imparted and may from time to time impart to you relating to the Services is proprietary and confidential and title thereto remains in us. All applicable rights to patents, copyrights, trademarks and trade secrets in the Services or any modifications made at your request are and shall remain in us. You shall not sell, transfer, publish, disclose, display or otherwise make available the Services or copies thereof to others. You agree to secure and protect each module, software product, documentation and copies thereof in a manner consistent with the maintenance of our rights therein and to take appropriate action by instruction or Agreement with your employees or consultants or others who are permitted access to each program or software product to satisfy your obligations hereunder. All copies made by you of the Services and other programs developed hereunder, including translations, compilations, partial copies with modifications and up-dated works, are the property of us. Violation of any provision of this paragraph shall be the basis for immediate termination of this Agreement.
We shall not be responsible for any activity occurring in connection with your Use or Access of the Services and you shall abide by all applicable local, state, national and foreign laws, treaties and regulations, including those related to data privacy, international communications and the transmission of technical or personal data. You shall notify us immediately of any known or suspected breach of security.
YOU AGREE THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS CAUSED DUE TO INHERENT NATURE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR TRANSFER OF SERVER ENVIRONMENTS OR OTHER SOFTWARE OR NETWORK OR HARDWARE OR INFRASTRUCTURE ISSUES AND WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
WE DO NOT OWN ANY CONTENT THAT YOU SUBMIT TO OR THROUGH THE SERVICES. YOU, AND NOT US, SHALL HAVE SOLE LIABILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS, AND INTELLECTUAL PROPERTY OWNERSHIP OR RIGHT TO USE OF ANY DATA, INFORMATION OR MATERIAL, AND WE SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CONTENT AND/OR USE OF CONTENT BY YOU.
IN NO EVENT WILL WE, OUR EMPLOYEES, CONTRACTORS, AGENTS OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOSS OF USE, DATA OR PROFITS, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SERVICES, OR ANY RESULTS OBTAINED FROM OR THROUGH THE SERVICES. WE WILL NOT BE LIABLE FOR ANY HARDWARE OR PLATFORM OR NETWORK-RELATED OR SERVER ENVIRONMENT PROBLEMS ATTRIBUTABLE TO THE SERVICES OR CHANGES TO HARDWARE OR PLATFORM OR NETWORK CONFIGURATION OR SERVER ENVIRONMENT THAT MAY AFFECT THE PERFORMANCE OF THE SERVICES AND FOR THE DELAY IN DELIVERY, INSTALLATION OR FURNISHING OF LICENSED MATERIAL OR SERVICES UNDER THIS AGREEMENT.
WE SHALL NOT BE LIABLE FOR ANY HARDWARE, SOFTWARE, INFRASTRUCTURE OR ANY OTHER SERVICES PROVIDED TO YOU BY ANY THIRD PARTY. WE SHALL ONLY BE HELD LIABLE FOR DIRECT DAMAGES RESULTING FROM OUR FAILURE TO PERFORM OBLIGATIONS UNDER THIS AGREEMENT. IN NO EVENT SHALL OUR LIABILITY FOR ANY DAMAGES EXCEED THE THEN CURRENT FEES PAYABLE BY YOU OR $100.00 WHICHEVER IS LESS.
Indemnification by Us. We will defend, at our expense, any action brought against you to the extent that it is based on a claim that the Services used within the scope of this Agreement infringe any patents, copyrights, license or other property right, provided that we are immediately notified in writing of such claim. We shall have the right to control the defense of all such claims, lawsuits and other proceedings. In no event shall you settle any such claim, lawsuit or proceeding without our prior written approval. If, as a result of any claim of infringement against any patent, copyright, license or other property right, we are enjoined from using the Services, or if we believe that the Services are likely to become the subject of a claim of infringement, we, at our option and expense, may procure the right for you to continue to use the Services, or replace or modify the Services so as to make it non-infringing. If neither of these two options is reasonably practicable, we may refund to you only the fees paid for the then-current Term, if any, and not all the fees paid from the Effective Date. We may discontinue the license granted herein on one month's written notice and refund only the fees paid for the then-current Term, if any, and not all the fees paid from the Effective Date. The foregoing states the our entire liability with respect to infringement of any copyrights or patents by the Services or any parts thereof.
Indemnification by You. You hereby agree that you shall fully indemnify and completely save harmless us and any of our directors, officers, employees, agents, representatives of and from any and all liabilities, claims, expenses, damages including reasonable legal fees and disbursements arising out of any claims or suits for damage or injury to person in connection with, directly or indirectly, in whole or in part, (i) any negligent act or omission of the your employees, agents, contractors, directors, officers or any person for whom you have a legal responsibility; or (ii) your failure to comply with any municipal, state or federal law; or (iii) any act or omission which is, or can be determined to be, a breach of any term or condition of this Agreement.
This Agreement shall automatically be terminated:
We shall have the right to terminate this Agreement and revoke the rights granted herein upon ten (10) days' written notice.
You may terminate this Agreement at any time by contacting us on our web site, in which case we shall not be obligated to refund any remaining portion of fees paid by you, if any.
You shall, in addition to any other amounts payable under this Agreement, pay all sales, services and other taxes, state, federal or otherwise, however designated which are levied or imposed by reason of the transactions contemplated by this Agreement. Without limiting the foregoing, you shall promptly pay to us an amount equal to any such items actually paid, or required to be collected or paid by us.
You are solely responsible for all required software, hardware, network or Internet access and computer equipment required to Use and Access the Services hosted on the Server Environment.
We shall use commercially reasonable efforts to maintain the Services and make the Services available for your Use, provided however that downtime for maintenance, upgrades, enhancements, or any other reason, may be scheduled at any time, with or without notice to you. Maintenance and support services do not include and we shall not be liable for any software or hardware or network employed by you to Use and Access the Services.
We reserve the right to cease the provision of maintenance and support services anytime without notice should we, in our sole discretion, determine that continued support for the Services is no longer economically practicable and/or in the event that the Services have become inoperable or incompatible with current operating systems, hardware, or other technologies.
We shall be under no liability to you in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of any matter outside of our reasonable control including, but not limited to, Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout, any power interruptions or failures of or interruptions to any communications equipment, software or hardware.
All notices required or permitted to be given by one of us to the other under this Agreement shall be sufficient if sent by personal delivery, e-mail or certified mail, return receipt requested, to the other at our respective addresses. Our address shall be the address listed on our website as of the date of the notice, and your address shall be the address provided when you first used the Services, or as may be updated from time to time.
This Agreement will be governed by and construe in accordance with the laws of the State of Ohio, United States, without reference to its conflicts of law principles and the state courts, and the Federal courts of and in the State of Ohio shall have exclusive jurisdiction. You irrevocably hereby consent to the jurisdiction and venue of any such court in any such action or proceeding. No agency, partnership, or joint venture is created by this Agreement. You and we are and remain at all times independent contractors and not agents or employees of each other.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. This Agreement sets forth the entire understanding of each of us as to its subject matter. The failure by either of us to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.
We may modify this Agreement by posting a revised version at www.forteeval.com/notice/agreement. The revised Agreement is effective immediately unless we expressly state otherwise. Your continued Use or Access of the Services beyond the Grace Period (defined herein) constitutes acceptance by you of the revised Agreement. It is your responsibility to regularly check the posted Agreement for changes. Notwithstanding the foregoing, we may, at our sole discretion, provide notice to you of any such revisions. If you do not accept the terms and conditions of any such revised Agreement, you must, within fifteen (15) days of any such revision to this Agreement (the “Grace Period”) provide notice to us of your intent to terminate the Agreement, and pay any outstanding fees owed to us.
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BY ITS DULY APPOINTED AUTHORIZED AGENT:
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