ODYSSEYWARE

OdysseyWare Legal Terms & Conditions

By using or allowing others to use the software, curriculum, materials, and website associated with OdysseyWare (“Service”), you (the “User”) are agreeing to be bound by these legal terms and conditions (“Agreement”). If you do not agree to the terms and conditions of this Agreement, do not use this Service. Any person interacting with the Service in any way, including but not limited to students, teachers, administrators, and parents, are Users for the purposes of this Agreement. Certain terms of this Agreement may not apply to your use of the Service however all applicable terms are nonetheless binding. OdysseyWare, Inc. (“OW”) reserves the right to change or terminate the terms of this Agreement at any time and from time to time without any notice to you by posting said changes on the OdysseyWare website. Any such changes are hereby incorporated into this Agreement by reference as though fully set forth herein.

A. General Provisions

1. Indemnification. You, the User of this Service, agree to indemnify and hold OW, its subsidiaries, affiliates, and assigns, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs, and expenses, including reasonable attorneys’ fees, arising out of this Agreement or in connection with any use of the Service including but not limited to any damages, losses, or liabilities whatsoever with respect to infringement of rights, defamation (including libel and slander), damage to any property, or loss of any data arising from the possession, use, or operation of the Service by the User or any customers, users, students, or others, or arising from transmission of information or the lack thereof connected with the Service described in this Agreement.

2. Termination. This Agreement shall remain in effect until terminated. This Agreement may be terminated at OW’s sole discretion and without prior notice, by mutual written agreement between the parties, but not by the User. OW may suspend, terminate, or delete your access to the Service without prior notice and in OW’s sole discretion and OW shall not be liable for any such suspension, termination, or deletion or its effects. OW may unilaterally and without notice terminate this Agreement and/or your access to the Service if you or any other person or entity using the Service violates any provision of this Agreement. OW shall not be liable to you or to any third party for any termination. Upon termination you or any other person using the Service shall cease to use the Service at your sole cost and expense and you shall return to OW at your sole cost and expense all physical copies of the Service within your possession, in whatever form then existing, via first class mail with return receipt service to OW at the address listed herein and shall delete all electronic copies irrevocably and in their entirety.

3. Updates. At its option, from time to time, OW may create updated versions of the Service and may make such updates available to you either for a fee or for free. Unless explicitly stated otherwise, any such updates will be subject to the terms of this Agreement including any amendments to this Agreement, to be determined in OW’s sole discretion.

4. Proprietary Materials. All content available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound, and other files, and their selection and arrangement (”Site Content”), as well as all software and materials contained in or related to the Service are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You hereby agree not to sell, license, rent, distribute, copy, reproduce, transmit, publicly display, modify, publicly perform, publish, or adapt such content or materials. Systematic retrieval of data or other content from the Service to create or compile, directly or indirectly, a collection, compilation, recreation, database, or directory of Service materials is prohibited except as provided for herein. Use of Service content or materials for any purpose not expressly provided for herein is prohibited.

5. Disclaimer of Warranty. The Service is provided “as is”, with all faults and without warranty of any kind. OW HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OW DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE CONTENT IS ACCURATE, RELIABLE, OR CORRECT OR THAT IT WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OW does not guarantee the operability of the Service at any time for any reason and assumes no responsibility for the timeliness, deletion, misdelivery, or failure to store any User communications or personalization settings. You assume the entire risk as to the quality, results, and performance of the Service as well as the entire risk and cost of all service, repair, or correction. No oral or written information, advice, suggestions, or recommendations given by OW, its representatives, dealers, distributors, agents, or employees shall create a warranty or in any way increase the scope of this Agreement and you may not rely on any such information, advice, suggestions, or recommendations. Some jurisdictions do not allow the exclusion or limitation of certain warranties or consumer rights so some exclusions and limitations may not apply to you.

6. Limitation of Liability. You hereby agree that OW, its subsidiaries, affiliates, and assigns, and each of their directors, officers, shareholders, agents, contractors, partners, and employees, shall not be liable to you or any third party for any indirect, special, consequential, or incidental damages including but not limited to damages for loss of profits, business interruption, loss of business opportunity, loss of data, or any other hardship, damages, or losses arising out of or related to: the use or inability to use the Service, however caused; unauthorized or accidental access to or alteration of data; statements or conduct of any third party; or any matter relating to the use of the Service; and even if OW has been advised of the possibility of such damages. OW shall not be liable nor assume any responsibility for any materials edited, revised, altered, or created in the Customization Tool. Some jurisdictions do not allow the exclusion or limitation of certain remedies or damages so some exclusions and limitations may not apply to you.

7. Severability. If any provision of this Agreement is held to be ineffective, unenforceable, or illegal for any reason, OW may reform such provision to the extent necessary to make it effective, enforceable, and legal or such provision shall be deemed severed and in either case this Agreement with such provision reformed or severed shall remain in full force and effect to the fullest extent permitted by law.

8. Controlling Law and Controversies. This Agreement shall be governed by the laws of the State of Arizona and of the United States. You understand and agree that use of the Service may involve interstate data transmissions which may be considered a transaction in interstate commerce under federal law. Any dispute related to this Agreement which cannot be resolved through negotiation will be settled through mediation administered by a mutually agreed upon mediator in Phoenix, Arizona under the Commercial Mediation Procedures of the American Arbitration Association. If mediation fails to resolve the dispute, you agree that the dispute shall be settled through arbitration administered by a mutually agreed upon arbitrator in Phoenix, Arizona under the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. Said judgment shall be final and nonappealable by either party hereto.

9. Entire Agreement. This Agreement constitutes the entire agreement between OW and the User relating to the subject matter hereof and supersedes all prior understandings, promises, and undertakings, if any, made orally or in writing with respect to the subject matter hereof. No modification, amendment, waiver, termination, or discharge of any portion of this Agreement shall be binding unless executed and confirmed in writing by OW.

10.Export Prohibitions. Any export or attempt to export the software either partially or in its entirety, related to the Service is governed by United States law and the laws of the jurisdiction in which you reside. Any export of software related to the Service or any portion thereof in any way prohibited by law or regulations issued by agencies of the United States federal government is hereby prohibited. Portions of the Service may include restricted computer software. Neither the Service nor any portion thereof nor the underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any U.S. embargoed country; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals; or (c) to the U.S. Commerce Department’s Denied Persons or Entities List or Table of Denial Orders. You hereby represent and warrant that you are not located in or the resident of any such country or on any such list.

B. End User Terms and Conditions

1. Ownership. This Service and all associated materials provided by OW are the solely-owned or licensed property of OW. The Service is licensed, not sold, to you under the terms of this Agreement. OW does not sell any title, ownership right, or interest in or to the Service. By using this Service, you are agreeing only to a non-exclusive, nontransferable license to use, according to the terms of this Agreement, the Service and any software programs or other proprietary material of third parties that are incorporated into the Service. OW reserves and retains all right, title, and interest (including but not limited to copyrights, patents, trademarks, and service marks and other intellectual property rights) in and to the Service and all associated materials. The remuneration paid for this product constitutes a license fee for the use of the Service.

2. Use.

(a) The copying, reproduction, duplication, translation, reverse engineering, adaptation, decompilation, disassembly, reverse assembly, modification, or alteration of the Service or any portion thereof is expressly prohibited without the prior written consent of OW except as provided for herein. The merger or inclusion of the Service or any portion thereof with any other computer program, and the creation of derivative works or programs from the Service or any portion thereof, is also expressly prohibited without the prior written consent of OW or as provided for herein.

(b) Neither the Service nor any part thereof may be rented, leased, sold, assigned, transferred, re-licensed, sub-licensed, or conveyed for any purpose. Any attempted rental, lease, sale, assignment, transfer, re-license, sub-license, conveyance, gift, or other disposition of the Service in violation of this Agreement is null and void. Any act or failure to prevent an act in violation of this Agreement may result in civil and/or criminal prosecution.

(c) Programs or software developed and/or owned by entities other than OW and included with or incorporated into the Service (“Third Party Software”) is subject to and its use is governed by this Agreement. The use of Third Party Software except as for any purpose other than its intended use in conjunction with the Service is prohibited.

3. Registration and Identifying Information. You hereby represent and warrant that any and all information provided by you to OW shall be complete, true, accurate, and current in all respects, and that you shall update any changes to information as soon as such changes occur. When providing any identifying information about students or minors, you hereby guarantee that you are authorized to provide such information and that you have read and agreed to the terms of the Privacy Policy included in this Agreement and associated with this Service.

4. Hosting Policy.

(a) OW may but is not obligated to provide database services to manage student records solely related to the use and application of the Service (“Hosting Services”).

(b) Hosting Services provided by OW in connection with the purchase and use of the Service are included in the price of the Service and OW is not responsible nor will OW provide or offer any discounts or credits if you do not have adequate facilities or equipment to utilize the Hosting Services.

(c) You agree to exercise the utmost vigilance and care in protecting all information to be transmitted via OW’s Hosting Services. OW is not responsible for any lost, stolen, or otherwise mismanaged data transmitted pursuant to this Agreement.

(d) Any and all information transmitted pursuant to this Agreement shall be subject to and covered by the indemnifications, liability limitations, and Privacy Policy included herein.

(e) OW reserves the right to modify or discontinue, temporarily or permanently, at any time and from time to time, the Hosting Services (or any part thereof) with or without notice. OW shall not be liable to you, the User, or to any third party for any modification, suspension, or discontinuance of the Hosting Services, for your or any third party’s use of the Hosting Services, or for any damages originating therefrom. In no event shall you be entitled to receive a rebate, refund, credit or reduction of the license fee which you have agreed to pay for the Service or Site Content.

5. Third Party Sites and Content. The Service contains (or may send you through or to) links to other websites (”Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (”Third Party Content”). OW does not check such Third Party Sites and Third Party Content for accuracy, appropriateness, or completeness and OW is not responsible for any Third Party Sites accessed through use of the Service or for any Third Party Content posted on, available through, or installed from the Service, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third Party Sites or the Third Party Content. Inclusion of, linking to, or permitting the use or installation of any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by OW. Although some computers may employ filtering software to prevent access to certain Third Party Sites, OW shall have no responsibility or liability whatsoever for any Third Party Sites or Third Party Content accessed through use of the Service.

6. User Conduct. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise created, used, posted, transmitted, or shared by you or others through you, on or through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal or proprietary rights; or contain libelous, defamatory, or otherwise unlawful material. You further agree not to use the Service to:

(a) collect email addresses or other contact information of other users of the Service;

(b) send unsolicited communications to other users of the Service;

(c) use the Service in any unlawful or unauthorized manner or in any other manner that could damage, disable, overburden, or impair the Service or the intellectual property rights owned by OW as described elsewhere herein;

(d) upload, post, transmit, share, store, or otherwise make available any content that OW deems harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically, or otherwise objectionable;

(e) misrepresent yourself, your age, or your affiliation with any person or entity;

(f) upload, post, transmit, share, or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(g) upload, post, transmit, share, store, or otherwise make publicly available through the Service any private information of any third party;

(h) solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial, unauthorized, or unlawful purposes;

(i) upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

(j) intimidate or harass another;

(k) upload, post, transmit, share, store, or otherwise make available content that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law;

(l) use or attempt to use another’s account, service, or system or create a false identity on the Service;

(m) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;

(n) upload, post, transmit, share, store, or otherwise make available content that infringes any proprietary rights of any party or defames, slanders, or libels any party, or otherwise violates any law of the United States or the jurisdiction in which you reside;

(o) upload, post, transmit, share, store, or otherwise make available content that, in the sole judgment of OW, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose OW or its users to any harm or liability of any type.

7. User Content. You are solely responsible for the profiles (including any name, image, or likeness), messages, notes, text, information, listings, and other content that you upload, publish, or display on or through the Service (“User Content”). Posting, transmitting, or sharing User Content through the Service that you did not create, that you do not have the rights to, or that you do not have permission to post is prohibited. You understand and agree that OW may, but is not obligated to, review and may delete or remove (without notice) any User Content in its sole discretion, for any reason or no reason, including User Content that in OW’s sole judgment violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to OW. When you post User Content, you authorize and direct OW to make such copies thereof as OW deems necessary in order to facilitate the posting, storage, and use of the User Content. By posting User Content through any part of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to OW an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Service or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

8. Customization Tool. Through your use of the Service, OW provides you access to an application allowing for the creation, modification, and deletion of portions of the Service and its related curriculum (“Customization Tool”). Your use of the Customization Tool is wholly governed by this Agreement. You shall not use the Customization Tool to create any materials which infringe any proprietary rights of any party or defames, slanders, or libels any party, or any content that OW deems in its sole discretion to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically, or otherwise objectionable, or otherwise violates any law of the United States or the jurisdiction in which you reside. OW shall retain all right, title, and interest in and to all materials originally provided as part of the Service. You shall not own any right, title, or interest in or to any material created through the use of the Customization Tool nor may you rent, lease, sell, assign, transfer, re-license, sub-license, convey, gift, or otherwise dispose of any material created through the use of the Customization Tool. OW shall own all right, title, and interest in and to any material created through the use of the Customization Tool unless such materials defame, libel, slander, or infringe or otherwise violate the rights of any third party or are unauthorized in OW’s sole discretion. OW hereby disclaims for all purposes and in all circumstances any responsibility or liability for any materials created through the use of the Customization Tool.

9. Technical Support. OW provides technical support to you only for your use of the Service. You must have uninterrupted Internet access in order to receive technical support. Under no circumstances will OW provide technical support for the following issues:

(a) Network issues such as Internet Service Providers, spy ware, viruses, loss of communication on the network and similar issues.

(b) Hardware issues such as switches, hubs, modems, routers, firewalls and similar items.

(c) Infrastructure issues such as power, electrical, or other instances beyond OW’s reasonable control.

(d) Issues not related to the use of the Service, as determined by OW in OW’s sole discretion.

C. Privacy Policy

OW institutes the terms of this privacy policy (“Privacy Policy”) to ensure that Users’ personally identifiable information (“PII”) is maintained in a safe, secure, and responsible manner. The following describes how OW collects, uses, and shares the PII obtained from and about individuals who use the Service. This policy does not apply to information that OW may collect outside the use of the Service, such as over the phone, by fax, or through conventional mail. All children’s educational records are protected as required by the Family Educational Rights and Privacy Act (FERPA), the Children’s Online Privacy Protection Act (COPPA), and other applicable federal and state laws.

1. Information Collected.

(a) OW may collect PII for purposes of administering educational programs, to improve the content of the Service and OW services, or for other commercial purposes. The only PII collected from you has been voluntarily submitted and provided to OW through your use of the Service, in response to surveys, or in response to other requests for information.

(b) The types of information that OW may collect include but are not limited to: name, address, email address, services requested, student registration and enrollment information, and background information.

(c) OW maintains all student data, student educational information, and student files as confidential in order to protect the privacy of students and schools. Strict security procedures ensure that student and school files and information are not disclosed to unauthorized parties.

2. OW Rights.

(a) OW reserves the right to use “cookies” to personalize the online experience.

(b) OW reserves the right to collect and log non-personal information related to your use of the Service.

(c) OW reserves the right to share PII with affiliated companies and third parties. You can request that your PII not be shared with independent third parties by making a request in writing to the address listed below.

(d) OW reserves the right to contact you for any reason related to the Service in OW’s sole discretion and without any opt-out option.

(e) OW reserves the right to disclose PII if required to do so by law or under the belief that such action is necessary to (a) comply with the law or with a legal process, (b) protect against misuse or unauthorized use of the Service, (c) enforce the terms of this Agreement, or (d) protect the personal safety or property of other users, the public, or OW employees.

3. Children. OW takes all steps necessary to protect children and to comply with the Children’s Online Privacy Protection Act (COPPA).

(a) The only student PII collected by OW is first and last name, username, and password, and is supplied by you through student enrollment. Student PII is limited to what is required to identify the user and is only used to identify the user. OW may not require disclosure of more student PII than is reasonably necessary to utilize the Service.

(b) Student PII is not disclosed to third parties. If OW were to disclose any student PII to third parties, the User or the student’s parent or guardian would have the option to agree to the collection and use of the student PII without consenting to the disclosure of the PII to third parties.

(c) Parents or guardians have the right to review their student’s PII collected by OW, request that their child’s PII be revised or deleted, or refuse to allow further PII to be collected by making a request in writing to the address listed below.

4. Third Party Web Sites. This Privacy Policy applies only to the Service and not to the websites of partners, affiliates, or third parties. You may be required to accept additional policies prior to your use of links accessed through the Service. OW is not responsible for the privacy policies of third party websites.

5. Access and Corrections to PII and Opting Out of Further Communications. Use the contact information below to request:

(a) Corrections or updates of any PII in OW’s database that you believe to be erroneous;

(b) An opt-out of future communications from OW; or

(c) OW to make reasonable efforts to remove PII from its online database. You acknowledge and accept that it may be impossible to delete personal information entirely because of backups and records of deletions.

(d) You may access or correct your PII or opt out of further communications by writing to:
OdysseyWare, Inc.
Attn: Legal Department
300 North McKemy Ave.
Chandler, AZ 85226

6. Changes in Corporate Structure. If all or part of OW or any of its affiliates are sold, merged, or otherwise transferred to another entity, the PII provided through use of the Service may be transferred as part of that transaction or process. The Family Educational Rights and Privacy Act (FERPA) protects children’s educational records in the event of such a transaction or transfer.

7. Contact. If you have any questions regarding this Privacy Policy, please contact:
OdysseyWare, Inc.
Attn: Legal Department
300 North McKemy Ave.
Chandler, AZ 85226