As amended: January 27, 2016
By registering for, or using any of the Services, You agree that You have read, understand and accept the terms and conditions of this Agreement, Our Privacy & Security Policy, which is incorporated into and form an integral part of this Agreement. You may not use Our Services if You do not accept this Agreement.
We may amend this Agreement in Our discretion. When We do this, We will post the changes on Our website and will indicate in writing the date these terms were last revised. Your continued use of the Services after the new effective date will constitute Your acceptance of such amendments. It is Your responsibility to review this Agreement, and We encourage You to visit Our website “www.itgsolutions.com” often.
2- The Services
2.1 Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services, ITG hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term (as defined below) to access and use the Services (Your “Subscription”):
2.1.1 EduWave Cloud solution.
2.1.2 The use of Our Website, help desk portals and servers, hardware, software and other means that We use in connection with performance of the Services.
2.2. In situations where Our Services allow it, You may write a software application or website (an “Application“) that interfaces with the Services. You acknowledge that We may change Our APIs from time to time, and that it is Your responsibility to ensure that Your use of Our Services is compatible with then-current APIs for the Service. We will attempt to inform You of any changes with reasonable notice so You can adjust Your Application, but we are under no obligation to do so.
2.3 We may offer You a free trial period during which you can try out a Subscription (a “Trial Period”). Prior to the Trial Period, You must provide Us with a valid credit card or debit card issued by a card issuer acceptable to Us for use in the case you decide to subscribe with Us following the Trial Period. If you do not provide Us with valid credit card or debit card, and any other information as We may require in order to activate Your Subscription, by the end of Your Trial Period, We will not activate the Trial Period. We reserve the right to modify, cancel or limit any Trial Period offer at any time.
3- Price and Payment Terms
3.1 The fees (the “Subscription Fees”) to be paid to ITG by You are set forth in Your account, and are non-refundable except as otherwise provided in this Agreement. We may charge You for fees and costs We incur in relation to Your use of the Service. We may modify the Subscription Fees or add new fees or charges to the Subscription Fees. Subject to the terms hereof, any such modifications or additions to the Subscription Fees will apply [commencing on the first day of the Subscription Term following such modification] following the effective date of such modification or addition (unless the subscription is terminated as specified herein). We will provide you with advance notification of any such modifications or additions to the Subscription Fees through email, posting on the Website or by such other means as We may determine in Our sole discretion. If You are unwilling or unable to accept and promptly pay when due any such modifications or additions to the Subscription Fees, You must terminate Your Subscription with Us and immediately stop using the Services. By continuing Your Subscription after any such modifications or additions to Subscription Fees, You accept and agree to pay all such modifications or additions to the Subscription Fees.
As a part of the registration process and as a condition of activating and continuing Your Subscription, We may require that You provide Us with a valid credit card or debit card issued by a card issuer acceptable to Us (such card, together with any other credit cards or debit cards subsequently designated by You and accepted by Us, your “Payment Card”) and pay all Fees with Your Payment Card. We may seek pre-authorization of Your Payment Card account prior to the activation of, and may seek confirmation of authorization of Your Payment Card at any time during the term of, your Subscription in order to verify that the Payment Card is valid or has the necessary funds or credit available to cover all Fees due in respect of your Subscription. Pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact Your card issuer if you have additional questions regarding when an authorization amount will be removed from Your statement. You must ensure that Your Payment Card has sufficient available credit or funds at all times during the term of your subscription. You agree to provide Us with updated information concerning your Payment Card upon Our request and at any time the information you provided to Us is no longer valid. In the event that You cancel Your Payment Card, Your Payment Card is terminated, or Your Payment Card is otherwise invalid, You shall promptly (and in any event within five (5) days of the start of any renewal term) provide Us with a new valid Payment Card number. You hereby authorize Us, from time to time, to take appropriate steps to determine whether Your Payment Card is valid. If We do not receive any payment of the Subscription Fees due under this Agreement from your Payment Card issuer or its agents, You agree to pay all amounts due upon demand by Us. In the event that You do not provide Us with a valid Payment Card number, Your Payment Card does not have sufficient credit or funds, Your Payment Card is otherwise invalid or You do not pay all Subscription Fees when due, You will and will be deemed to be in violation of this Agreement, and We may, at any time, at Our option and in Our sole discretion, suspend or terminate Your subscription, and pursue all available remedies at law or equity.
3.2 Unless otherwise confirmed by Us in writing, You agree to pay Us in advance for the Services, without the right of set-off or counterclaim. If We incur costs from third parties associated with Your Subscription, these will be deducted from Your account the month after We receive an invoice for such costs. We will not be obliged to perform any Services under this Agreement if You have not provided payments. By authorizing Us to charge your Payment Card for the Subscription Fees, you are authorizing Us to automatically continue charging that Payment Card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer) for all Subscription Fees. You authorize the card issuer to pay any amounts described herein and authorize Us, or any other company that acts as a billing agent for Us, to continue to attempt to charge all due and owing Subscription Fees to your Payment Card account until such amounts are paid in full.
3.3 All charges and fees for the Services are exclusive of any taxes, including sales, value-added, or other taxes. You will be liable for and will reimburse ITG for all sales or value-added taxes imposed in connection with or arising from the provision of Services. At ITG’s request, You will provide ITG sufficient information as to the timely payment of all applicable taxes.
3.4 You acknowledge and agree that We are entitled to set off or withhold the amount of all or any part of amounts due or owing under this Agreement or any damages resulting from Our breach of this Agreement reasonably proven or awarded (subject to Section 7) against any payments owed by You to Us under this Agreement or otherwise.
4- Your Representations, Warranties & Obligations
Unless We otherwise agree in writing:
4.1 You are responsible for providing suitable hardware or communications equipment, and for all other infrastructure necessary to ensure Your access to Our Services. You are also responsible, at Your own expense, for the provision and the regular monitoring of Your and Your End Users’ use of Our Services.
4.2 You agree that We exercise no control over Your or Your End Users’ content, and are a passive conduit in handling such content. As between us, You are responsible for the content generated by You, on Your behalf or by End Users using the Services.
4.3 You will not use the Services for any improper purpose or in any manner which contravenes this Agreement and Our Privacy & Security Policy, will not allow any third party to do so, and will employ industry best practices and retain documentation evidencing Your compliance with this Section 4.3 throughout all applicable limitations periods. We reserve the right to monitor use of Our Services for any reason or no reason, without notice, to insure compliance with this Agreement and Our Privacy & Security Policy.
4.4 You will inform ITG immediately if You have reason to believe that there is likely to be an unauthorized or impermissible use of the Service.
4.5 You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) You are duly authorized to do business in the jurisdiction where You operate; (iii) You are an authorized representative of Your entity duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your account; and (iv) You have read and understand this Agreement.
5- Warranties, Disclaimers & Liability
5.1 ITG will provide You with Services that meet reasonable commercial standards. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
5.2 ITG cannot guarantee that the Services will not be faulty, and will take reasonable commercial efforts to correct reported faults and restore the Services as soon as practicable.
5.3 ITG may temporarily suspend the Services in order to undertake maintenance or upgrades. ITG will endeavor to give You five (5) working days’ prior notice of such suspension on Your account. When possible, such maintenance-related suspensions (excluding force majeure events or substantial or total outage of the Services, which We cannot foresee) will occur during off peak hours.
5.4 ITG is not responsible in any way for any internet service providers, mobile systems or other networks, which We do not operate. Therefore ITG is not liable for the acts or omissions of other providers of connectivity or for faults in or failures of their apparatus or network, and in general for any other technical reason attributable to internet connectivity or telecommunication service.
5.5 You acknowledge that ITG has no control over the information which passes through the EduWave platform or how the Services are used by end-users, and that ITG does not examine the use of such information or the nature or the source of the information. You will be solely liable for the accuracy, completeness and appropriateness of the content transmitted by You or anyone else using the Services on Your behalf. You agree to handle Your EduWave credentials (login username/password) carefully and take responsibility for any and all use of Your credentials and the credentials of End Users You designate. ITG disclaims all liability of any kind in connection with the transmission or reception of such content.
5.6 IN NO EVENT WILL WE OR OUR SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE OUR SERVICES EVEN IF WE OR OUR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will We or Our suppliers’ liability to You, whether in contract, tort (including negligence), or otherwise, exceed the price paid by You for Our Services in a twelve month period. The foregoing limitations will apply even if the above-stated warranty fails of its essential purpose.
6.1 You will defend and handle at Your own expense, indemnify and hold harmless ITG, parent companies, subsidiaries and affiliated companies, their respective officers, directors, employees and agents, subcontractors, suppliers (each, an “indemnified party”) from and against any and all claims, demands, actions, damages, costs and expenses, or liability of whatever nature incurred or to be incurred by an indemnified party (including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines and penalties) in connection with or arising from (i) Your use of the Services other than as expressly authorized in this Agreement, (ii) Your infringement of any third party intellectual property rights in connection with or arising from Your use of the Services, (iii) any breach of this Agreement, and (iv) any claims arising from information, data, or messages transmitted by You using the Services that We contend comprise a violation of Our Privacy & Security Policy.
6.2 ITG agrees to promptly notify You of any such claim, to permit You to control the defense and/or settlement of such claim and to assist You, at Your expense and reasonable request, in the defense and/or settlement of any such claim. You agree that ITG may additionally participate, at ITG expense, in the defense of any such claim through counsel of Our own choosing.
7- Dispute Resolution
7.1 This Agreement, and all matters arising out of or relating to this Agreement, will be governed by and interpreted in accordance with the laws of the State of California, United States, without regard to the choice of law rules of the State of California.
7.2 You and ITG agree to resolve disputes only by arbitration. If either You or ITG intends to seek arbitration under this Agreement, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to ITG should be sent as required by this Agreement. The notice must describe the nature of the claim and the relief being sought. If You and ITG are unable to resolve Our dispute within 30 days, either party may then proceed to file a claim for arbitration. The location of arbitration will be in San Francisco, California and in accordance with the JAMS Streamlined Arbitration Rules and Procedures. No class or representative or private attorney general theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement. The tribunal will consist of one arbitrator. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
7.3 The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding.
8- Term; Termination
8.1 The term (“Term”) of this Agreement will commence once You accept this Agreement by registering for the Services. The Agreement will remain in effect until terminated by You or Us in accordance with this Section 8.
8.2 You may terminate this Agreement for any reason or no reason at all, at Your convenience, by closing Your account for any Service for which We provide an account closing mechanism or by contacting us. This will result in the cessation of access to Our platform by both You in Your capacity as a Subscriber and the End Users related to such Subscriber.
8.3 We may suspend Your right to use the Services or terminate this Agreement in its entirety (and, accordingly, Your right to use the Service), for cause effective as set forth below:
8.3.1 Immediately upon Our written notice to You if (i) You violate any provision of this Agreement or We have reason to believe that You have violated this Agreement, (ii) there is an unusual spike or increase in Your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iii) We determine, in Our sole discretion, that Our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; (iv) You use the Services in any manner that may subject Us or any third party to liability, damages or presents harm to our business; or (v) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
8.3.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to Us is invalid or charges are refused for such payment mechanism.
8.4 Effect of Suspension or Termination.
8.4.1 Upon Our suspension of Your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the Services will be terminated during the period of the suspension.
8.4.2 Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) except as expressly set forth herein, all of Your rights under this Agreement will immediately terminate.
8.4.3 Following the suspension or termination of Your right to use the Services by Us or by You for any reason other than a termination for cause, You may take advantage of any post-termination assistance We may generally elect to make available with respect to the Services such as data retrieval arrangements. We may also provide You with other post-suspension or post-termination assistance, but We are under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to You, is conditioned upon Your advance payment of fees and acceptance of terms that We specify in writing for such assistance.
8.5 In the event this Agreement expires or is cancelled or terminated for any reason, Section 3 (Price and Payment Terms), Section 4 (Your Obligations), Section 5 (Warranties, Disclaimers and Liability), Section 6 (Indemnification), Section 7 (Dispute Resolution), Section 9 (Intellectual Property) and Section 13 (General) will survive any such expiration, cancellation or termination.
9- Intellectual Property
9.1 Intellectual property rights in all software, information, technology or data whatsoever supplied by ITG under the Agreement will remain the property of ITG or its licensors, and You agree to not copy, sell, modify, adapt, translate, reverse engineer, decompile or disassemble or create derivative works of any Services or software or other products that form any part of the Services, or permit others to do so (except that the foregoing does not apply to content that is generated by You and Your authorized agents using the Services consistent with this Agreement). Any intellectual property rights to any developments will be the property of the developing party.
9.2 Nothing in this Agreement or the Services may be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of ITG trademarks displayed on the Services, without Our prior written consent, and as between Us, ITG owns the goodwill generated from the use of ITG trademarks.
9.3 We hereby grant to You a limited, non-exclusive, non-transferable, non-sub-licensable, revocable license during the Term to display the trade names, trademarks, service marks, logos, domain names of ITG We may specify from time to time (the “ITG Marks”) for the purpose of promoting or advertising that You use the Services, solely in accordance with the terms and conditions of this Agreement. In return, You hereby grant Us a limited, non-exclusive, non-transferable, non-sub-licensable license during the Term to display Your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that You use the Services. In using the ITG Marks, You may not: (i) display ITG Marks in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Us; (ii) use ITG Marks to disparage ITG or its products or services; or (iii) display a ITG Mark in a manner that violates Our Privacy & Security Policy. Notwithstanding the above, We may determine in Our sole discretion whether Our marks may be used in connection with Your Application. All uses of the ITG Marks and associated goodwill will inure to Our benefit.
10- Force Majeure
10.1 Any delay or failure by either party hereto in performance hereunder will be excused if and only to the extent that such delays or failures are caused by occurrences beyond such party’s control, including acts of God, decrees or restraints of governments, strikes or other labor disturbances, war, sabotage, and any other cause or causes, whether similar or dissimilar to those already specified, which cannot be controlled by such party; provided that the party seeking to excuse its performance will promptly notify the other party of the cause therefore, such performance will be so excused during the inability of the party to perform but for no longer period, and the cause thereof will be remedied so far as possible with all reasonable dispatch. Notwithstanding the foregoing, either party may terminate this Agreement in writing if such condition continues for a period of sixty (60) days.
11.1 Notices that We provide to You under this Agreement (e.g., notices of breach and/or suspension) will be provided via a notification message displayed on Your account page or in email to the email address You provide Us in Your registration for the Services or through periodic updates You make to Your account profile. It is Your responsibility to keep Your email address current, and You will be deemed to have received any email sent to the last known email address We have on record for You. Notices We send You will be deemed effective upon Our sending of the email, whether or not You actually receive the email.
11.2 For notices You provide to Us under this Agreement, please contact ITG by mail at:
ITG America, LLC.
2550 N. 1st Street
San Jose, CA 95131
12.1 The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other subsequent default of breach.
12.2 Except as provided above, this Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be deemed to have been given, except by an agreement in writing signed by the party against whom enforcement of the change or modification is asserted.
12.3 You may, with written notice to ITG, assign any or all of Your rights and obligations under this Agreement to another entity: (i) as part of a bona fide reorganization; (ii) which acquires all or substantially all of the assignor’s assets entailed in the performance or use of the Service, for which assignments, We hereby provide Our irrevocable consent. Any other assignment of Your rights and obligations under the Agreement will be conducted only with Our consent, such consent not to be unreasonably withheld or delayed. Any assignment of rights and obligations You make will be without prejudice to the continuation of Your obligations subsisting prior to the effective date of such assignment.
12.4 You may not issue press releases or other forms of promotion that mention ITG in regard to this Agreement announcing the Services without Our prior written consent.
12.5 If any provision of this Agreement or any part of such provision is or becomes invalid or unenforceable or is missing, the other provisions of this Agreement will not be affected thereby. The invalid or unenforceable or missing provision will be replaced by a valid and enforceable provision, the effect of which comes as close as possible to the intended economical effect of the invalid or unenforceable or missing provision.