Road to Decode®

ED Tech Services And Data Sharing

Effective Date: Aug 2024

 

This ED TECH SERVICES AND DATA SHARING AGREEMENT (“Agreement”) is entered into immediately upon purchase by Lyndsey Kuster LLC (“Provider”) and You (“Teacher”). The parties agree as follows:

  1.  Relationship. Provider will provide access to the Road to Decode Student Portal, including any related written materials, training materials, quizzes and exams, user guides, audio and visual portions (“Product”) to Teacher. Teacher understands and agrees that results are not guaranteed.
  2.  Compensation. In consideration of the Products provided by Provider, the Teacher will pay Provider the rate as stated on Provider’s website.
  3.  Term: This Agreement is for a term of one year (“Term”), unless terminated sooner. Teacher may cancel at any time and access to the Program will be terminated at the end of the year. No refunds or prorated refunds are provided. This Agreement will automatically renew for successive annual periods and your payment method will automatically be charged for each successive annual period at the then-current rate until you cancel the Agreement.
  4.  License. Provider hereby grants to the Board a non-exclusive, worldwide, non- transferable, royalty-free (except for fees specified in this Agreement) license for one year to use the Product for the Term of the Agreement (“License”). This license covers up to 32 students or the number specified in your contract.
  5.  Intellectual Property Rights. Provider shall be the sole and exclusive owner of all rights, titles, and interests to all the results and proceeds of all work related in any way to the Products, including all patents, copyrights, trademarks, trade secrets, moral rights, and other intellectual property rights. Teacher may not make any changes to the Product. Teacher may not do any of the following or aid anyone in such endeavor: (a) Sublicense, sell, lease, share, or rent the Product; (b) Decompile, disassemble, reverse engineer or attempt to derive the source code from or structure of the Product; (c) Create a derivative work that is based on any portion of the Product; (d) Rewrite any portion of the Product or use any portion of the Product in connection with creating any work that is similar in function, content or appearance to any portion of the Product; (e) Remove any proprietary notice from the Product; (f) Copy, reproduce, distribute, or in any way duplicate all or any part of the Product; (g) Export or re-export the Product or any portion; (h) Engage in, facilitate, or further any unlawful conduct; (i) Damage, disable, overburden, or impair the Product or interfere with anyone else's ability to access or use the Course; (j) Expose the Product to a third party; and/or (k) Disrupt, or try to gain unauthorized access to: any computer, hardware, or network related to the Product

“Student Data” means any data, metadata, information, records, or other materials of any nature recorded in any form whatsoever, that is generated, disclosed, maintained by, transmitted, created, or provided by the Teacher, either directly or through its students, employees, agents, and subcontractors. All rights, including all intellectual property rights, associated with such Student Data shall remain the exclusive property of the Teacher.

  1.  Representations and Warranties of Teacher: Teacher represents and warrants that they have received parental or guardianship consent for each student using the Product pursuant to federal, state, and local laws and regulations and that such consent will be ongoing during the Term of this Agreement. Teacher represents and warrants that they have received all approvals necessary in their school, school district, city, and state to use the Product and that such approval will be ongoing during the Term of this Agreement.
  2. Compliance with Laws. Teacher’s use of the Product is and shall remain in compliance with all applicable federal, state, county, and municipal statutes, laws, ordinances, and regulations relating to this Agreement in effect now or later and as amended from time to time, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”); the Student Online Personal Protection Act (“SOPPA”); the Children’s Online Privacy Protection Act (“COPPA”); the Protection of Pupil Rights Amendment (“PPRA”); and any others relating to non-discrimination. Further, Teacher’s use of the Product is and shall remain in compliance with all applicable Teacher district policies and rules.
  3.  Product Use. Teacher agrees not to use the Product: In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise; Use the Product in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Product, including their ability to engage in real time activities through the Product; Use any device, software or routine that interferes with the proper working of the Product; Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Product, the server on which the Product is stored, or any server, computer or database connected to the Product; Attack the Product via a denial-of-service attack or a distributed denial-of-service attack; Otherwise attempt to interfere with the proper working of the Product.

At Provider’s sole discretion, Provider has the right to remove any users, students, or student submissions in the Product and terminate or suspend access to all or part of the Product. Without limiting the foregoing, Provider has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Product.

  1.  Force Majeure. Provider shall not be liable or responsible to Teacher, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in performance when and to the extent such failure or delay is caused by or results from acts or circumstances beyond their reasonable control, including, without limitation, acts of God; fire; flood; natural disaster or emergency; hurricane; tornado; severe storm; earthquake; act of war, invasion or hostilities (whether war is declared or not); sabotage; explosions; government actions; terrorist threats or acts; violent acts; revolution or insurrection; riot or civil unrest; epidemic or pandemic; lockouts, strikes or other labor disputes (whether or not relating to Provider or Provider’s workforce); interruption or failure of technology or utility or telecommunications service (for example, Internet failures); or failure  of suppliers, subcontractors, and carriers to substantially meet their performance obligations.

 

  1.  Disclaimers. THE PRODUCT IS AVAILABLE "AS IS." PROVIDER DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES IN THE NEWS, INFORMATION, OR OTHER MATERIALS AVAILABLE THROUGH THE PRODUCT.

PROVIDER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THOSE OF NON- INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WITH RESPECT TO THE PRODUCT.PROVIDER DOES NOT PROVIDE OR AUTHORIZE THE PROVISION OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE THROUGH THE PRODUCT, AND SO DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL INFORMATION THAT IS CONTAINED WITHIN THE PRODUCT 

 

PROVIDER RESERVES THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN THE PRODUCT. WE DO NOT GUARANTEE OR WARRANT THAT THE PRODUCT DOES NOT CONTAIN VIRUSES, WORMS, "TROJAN HORSES," OR OTHER DESTRUCTIVE MATERIALS. PROVIDER IS NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO SUCH FEATURES.

NO PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE BY PROVIDER OR ANY OF PROVIDER’S AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.

 

  1.  Miscellaneous.

 

The following clauses shall survive any termination of the Agreement:

 

(a) LIMITATION OF LIABILITY. IN NO EVENT SHALL THE PROVIDER HAVE ANY LIABILITY TO TEACHER FOR ANY LOST WAGES, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND IN NO EVENT SHALL THE PROVIDER’S LIABILITY EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

(b) Indemnification. Teacher agrees to defend, indemnify, and hold harmless the Provider, its affiliates, licensors, service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liens, obligations, actions, suits, settlements, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable costs and attorneys' fees), or causes of action of every kind, nature, and character arising or alleged to arise out of the acts or omissions of Provider, it’s officials, agents, and employees, and subcontractors, and of Teacher in the performance of this Agreement. The foregoing obligation extends to and is intended to encompass any and all Claims that the Products infringe, misappropriate, or otherwise violate any confidentiality, proprietary, data, or intellectual property rights of any third party.

 

(c) Venue; Governing Law. For any legal action regarding this Agreement, the exclusive venue shall lie in North Carolina. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of North Carolina, without giving effect to principles of conflicts of law.

 

(d) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.

 

(e) Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement.  No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.