BY ACCESSING OR USING THE HELLO WORLD CS (HWCS) PLATFORM, OR ANY OTHER WEBSITES OR APPLICATIONS OF HW TECH STUDIO, INC., ALSO KNOWN AS HELLO WORLD CS (“HWCS” “WE” OR “US”) THAT LINK TO THESE TERMS, OR ANY OF THE SERVICES PROVIDED OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, APP, OR VIRTUAL OR IN-PERSON PROGRAMMING (COLLECTIVELY, THE “SERVICES”) YOU (“YOU” OR “USER”) REPRESENT THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS. THIS AGREEMENT IS INTENDED TO COVER ANY AND ALL SERVICES PROVIDED BY HWCS.
This document outlines the standard contractual terms and conditions that apply to the provision of any products or services by Hello World CS (“HWCS”) to the entity identified in the Customer Agreement Form. A “Customer Agreement Form” means any order for the provision of products or services signed by an institution, such as a school, school district, non-profit, or private company (collectively “Customer”). These terms are incorporated into the Customer Agreement Form and together, the Customer Agreement Form and these Terms are the “Agreement.” HWCS and Customer are referred to in this Agreement each as a “party” and together as the “parties.”
- Types of Users: The Services are available to several different types of Users, who will have different types of accounts with different tools, functionalities and restrictions. For example, Services may be accessed by teachers, employees, officials, agents, students enrolled in classes (each a “Licensed User” and together the “Licensed Users”)
- Changes to Services. Occasionally, HWCS may update or perform maintenance on the Services. HWCS shall have the right to revise or update the functionality and look of the Services from time to time in its sole discretion. Customer agrees that HWCS shall not be liable to Customer or any third party for any modification, suspension or termination of the Services. HWCS shall provide advance notice via electronic communication to Customer when the functionality, look, or operation of the Services will be updated or revised in a manner that would be considered a material or significant change to the Services.
2. Intellectual Property and Licenses
These terms and conditions describes the Services and HWCS’s representations regarding the collection and use of data with the Services consistent with the Family Educational Rights and Privacy Act (“FERPA”), the Children’s Online Privacy Protection Act (“COPPA”), and other relevant state and federal laws governing student privacy.
- Intellectual Property. The Services may contain material derived in whole or in part from material supplied by HWCS and other sources, and such material is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. Except as licensed to a Customer, all content, information, materials, computer code, and software part of the Servicesis the property of HWCS or third parties. HWCS and its licensors reserve all past, present, and future right, title, ownership, and interest in the Services, and derivative works thereof, associated copyrights, trademarks, logos, trade secrets, patents, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Services (collectively, the “HWCS Intellectual Property”). Customer understands that HWCS and its licensors solely and exclusively own the HWCS Intellectual Property, and Customer has no ownership rights to any HWCS Intellectual Property or the Services. All rights to the Services not expressly granted herein are reserved by HWCS. Customer shall abide by all copyright and other intellectual property laws and shall promptly notify HWCS of any unauthorized access or use of the Services.
- License by HWCS. Unless stated otherwise in this Agreement, HWCS grants to Customer and its teachers, employees, officials, agents, students, parents, and guardians (each a “Licensed User” and together the “Licensed Users”) the non-exclusive, non-assignable, non-transferable, limited right to (i) access and use the Service solely for noncommercial educational purposes. This limited license shall apply to any updates, upgrades, and/or additional features of the Services not distributed with a separate license or other agreement.
- License from Customer. Customer grants HWCS a limited, transferable license to use and display Customer’s name and logo to operate the Services. Customer grants HWCS a limited, transferable license to use Student Data, which in this terms is defined as includes any data, whether gathered by Provider or provided by Customer or its users, students, or students’ parents/guardians, that is descriptive of the student including, but not limited to, information in the student’s educational record or email, first and last name, or other information allowing physical or online contact, discipline records, videos, test results, special education data,grades, evaluations, disabilities, socioeconomic information, individual purchasing behavior or preferences, text messages, documents, student identifiers, search activity, photos, voice recordings, geolocation information, parents’ names, or any other information or identification number that would provide information about a specific student. Student Data includes Meta Data. Student Data further includes “Personally Identifiable Information (PII),” as defined in 34 C.F.R. § 99.3 and as defined under any applicable state law. Customer is solely responsible for the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of all applications, information, software, and data, including any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, or images, that Customer or its Licensed Users create, install, upload or transfer on, from or through the Services (collectively, “Content”). All Student Data transmitted to HWCS pursuant to this Agreement is and will continue to be the property of and under the control of the Customer.
- Feedback. If Customer provides feedback, comments or suggestions for improvements to the Services (in written, oral, or any other form) (“Feedback”), Customer represents and warrants that (a) it may disclose the Feedback, (b) the Feedback does not violate the rights of any other person or entity, and (c) the Feedback does not contain the confidential or proprietary information of any third party or parties. Customer (i) acknowledges that HWCS may have something similar to the Feedback already under consideration or in development and (ii) assigns to HWCS its entire right, title, and interest (including any intellectual property rights) in and to Feedback. If any right, title, or interest in the Feedback cannot be assigned under law, Customer waives such right, title or interest and consents to any action of HWCS, its service providers, successors, and assigns that would violate such right, title, or interest absent such consent. Customer agrees to execute any documents necessary to affect the foregoing assignment, waivers, or consents. You hereby grant to HCWS a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
- Customer Testimonials. HWCS may display personal testimonials and endorsements of satisfied customers with respect to the Services, including Customer personnel, and Customer agrees that HWCS may associate Customer’s name and logo with such postings from its personnel.
3. Restrictions of Use
- General. Customer may not license, sell, rent, lease, assign, distribute, host or otherwise commercially exploit or make available the Services to third parties (other than those who may be Licensed Users, as defined in this Agreement), except as specifically permitted under the terms of this Agreement. Customer agrees that Customer and Licensed Users may not copy, display, seek to disable, distribute, perform, publish, modify, transfer, create works from, or use the Services or any component of the Services, except as authorized by HWCS.
- Duties of Customer. Customer shall use commercially reasonable efforts to ensure Licensed Users and third parties do not: (i) remove or alter any HWCS Intellectual Property from the Services (including, but not limited to, HWCS’s trademarks and/or logos, any legal notices in the Services, and/or any related assets); (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services, or any component thereof, or to build or support (and/or assist a third-party in building or supporting) products or service in competition with HWCS, by any means; (iii) reproduce the Services in any form or by any means, except as may be necessary to receive the services set forth in this Agreement; (iv) attempt to create a substitute or similar service through the use of, or access to, the Services; (v) copy any HWCS Intellectual Property in the Services to develop, build, or support a competitive product; or (vi) use any HWCS Intellectual Property in any manner that creates the impression that such Intellectual Property belongs to or is associated with Customer.
4. Data Privacy
- HWCS and Customer acknowledge that provision of the Services may require HWCS to collect, process, store, or view information that identifies or is linked to a specific student Licensed User, including Education Records or Personally Identifiable Information in such Education Records, as such terms are defined in in 34 CFR § 99.3, whether created or submitted by Customer or Licensed Users or is gathered by HWCS through operating the Services.
5. Confidential Information
- Confidential Information Defined. “Confidential Information” includes, without limitation, all technical and nontechnical information provided by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is (a) designated as confidential at the time of disclosure, or (b) should reasonably be understood to be confidential given the information and the circumstances surrounding its disclosure. Except as provided in this Agreement, all technical and non-technical information about or related to HWCS’s products, services, online properties, financial data, intellectual property, and business and marketing plans shall be deemed HWCS Confidential Information.
- Non-Confidential Information. Confidential Information includes no information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party before its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party who rightfully possesses the information without confidential or proprietary restrictions; or (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. Each Party to this Agreement agrees that it will not publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of the other Party, except as necessary in the performance of this Agreement or with such Party’s written consent. The Receiving Party shall only use the Disclosing Party’s Confidential Information to the extent necessary to fulfill its obligations under this Agreement. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity except to its own employees, subcontractors, service providers, or partners who have a need to know and are bound by non-disclosure obligations that are no less restrictive than those set forth in this Agreement. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care).
- Requests for Confidential Information. If either Party receives a request for the other Party’s Confidential Information, including, with respect to HWCS’s Confidential Information, a request under the Freedom of Information Act or a similar state records law, or by the order or a court of similar judicial or administrative body, the Receiving Party shall notify the Disclosing Party of such request promptly and in writing and cooperate with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit such requested disclosure. Each Party agrees that it will furnish only that portion of the Confidential Information legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information being disclosed.
6. Term and Termination
The Terms commence on the date when you accept them as described in Customer Agreement Form and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms.
- You may place orders for the Service by contacting your HWCS representative. The Services are subject to the restrictions set forth on the order quote or Customer Agreement Form. HWCS may change the pricing for the Services, (from time to time in its sole discretion) by updating the Website or future invoices, as applicable, and without any additional notice to you, provided that any changes will not take effect until your subscription renews.
7. Fees and Payments.
- Payment of Fees. Specifics about pricings and fees are agreed upon by both parties. Customer will pay all fees when due. Customer agrees that its payment obligations are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by HWCS regarding future functionality or features. All fees and pricings are governed by the Customer Agreement Form.
- Taxes. The fees charged to Customers are exclusive of taxes, however Customer will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse HWCS for such withholding tax.
- Unless otherwise stated on the purchasing agreement, Fees are paid in advance of each billing period. Payment obligations under this Agreement are non-cancelable and all Fees paid are non-refundable. Upon your cancellation or termination of any Subscription, you remain responsible for payment of all Fees allocable to the terminated portion of the Subscription Term referenced in the applicable partnership agreement without any refund owed to you, unless otherwise mutually agreed to in writing between you and us.
- Suspension of Account for Failure to Pay. HWCS reserves the right to suspend Customer and its Licensed User’s use of the Services, in addition to all of its other rights and remedies, if Customer’s account becomes overdue and is not brought current within thirty (30) business days following the first missed regularly-scheduled payment to HWCS.
- Unless there is a prior written agreement stating otherwise, a purchase order, a signed agreement, access granted to subscription services, and/or the provision of professional services collectively form an agreement between the customer and Hello World CS.
8. Free or Trial Subscriptions
- (a) If we make an Offering available to you on a free or trial basis, it is so you can use the Offering before purchasing a Subscription to determine if it meets your needs. Trial or Pilot subscriptions to an Offering shall be subject in all respects to the terms of this Agreement, except that to the extent permitted by Applicable Law, we (a) may discontinue the Offering or your ability to use it at any time, with or without notice and without any further obligations to you; (b) provide the Offering to you solely “AS IS” without any warranties of any kind; and (c) will have no liability for any harm or damages suffered by you or any third party in connection with the use or inability to use the Offering during the trial period.
9. Links and Other Third-Party Materials
- Certain content, components, or features of the Services, or data contributed by Licensed Users may include materials from third parties and/or hyperlinks to other web sites, resources or content (together, “third-party materials”). Because HWCS may have no control over such third parties and/or materials, Customer acknowledges and agrees that (i) HWCS is not responsible for the availability of such third-party materials and shall in no way be liable or responsible for any third-party materials on or available from such third-party materials used by Customer or Customer’s Licensed Users and (ii) HWCS is not responsible for any virus, worm, malware, or other malicious computer code that results from contributions or actions of Licensed Users or third-party materials.
10. WARRANTY DISCLAIMERS
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SERVICES, SOFTWARE, AND ANY ASSOCIATED CONTENT ARE PROVIDED ON AN “AS AVAILABLE” BASIS. HWCS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, “HWCS”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, AND NON-INFRINGEMENT. IN PARTICULAR, HWCS MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (II) CUSTOMER USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE, OR FREE FROM ERRORS, LOSS, CORRUPTION, ATTACK, VIRUSES, OR HACKING; (III) ANY INFORMATION OBTAINED BY CUSTOMER AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO CUSTOMER AS PART OF THE SERVICE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT CUSTOMER’SAND LICENSED USERS’ OWN DISCRETION AND RISK, AND CUSTOMER AND ITS LICENSED USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER OR ITS LICENSED USERS’ DEVICES, COMPUTERS, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, INCLUDING DAMAGE OR LOSS OF DATA DUE TO VIRUSES OR MALWARE.
Customer acknowledges that HWCS is not responsible or liable in any way for any Content provided by Customer or its Licensed Users. However, HWCS has the right, but not the obligation, to determine whether content is appropriate and in compliance with this Agreement, and may pre-screen, move, refuse, modify and/or remove content at any time, without prior notice and in its sole discretion, if such content is found to be in violation of this Agreement or a third party’s intellectual property rights, illegal, or otherwise objectionable.
11. LIMITATIONS ON LIABILITY
EXCEPT AS SPECIFICALLY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM ANY CLAIM OR ACTION BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. HWCS SHALL NOT BE LIABLE FOR CUSTOMER’S INABILITY TO USE THE SERVICES DUE TO (I) SCHEDULED DOWNTIME, WHICH HWCS WILL ATTEMPT TO SCHEDULE WHEN CUSTOMERS ARE NOT IN SESSION AND ABOUT WHICH HWCS WILL GIVE CUSTOMER 14 DAYS ADVANCE WRITTEN NOTICE; (II) UNAVAILABILITY DUE TO FACTORS OUTSIDE OF HWCS’S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, ACTS OF GOVERNMENT, PANDEMICS, FLOOD, FIRE, EARTHQUAKES, CIVIL UNREST, ACTS OF TERROR, STRIKES OR OTHER LABOR PROBLEMS (OTHER THAN THOSE INVOLVING HWCS’S EMPLOYEES); (III) UNAVAILABILITY THAT RESULTS FROM EQUIPMENT AND/OR SOFTWARE OF THIRD PARTIES WHERE SUCH EQUIPMENT AND/OR SOFTWARE IS NOT WITHIN THE REASONABLE CONTROL OF HWCS; (IV) UNAVAILABILITY CAUSED BY ABUSE OR MISUSE OF THE SERVICES (OR ANY COMPONENT THEREOF) BY CUSTOMER OR ITS LICENSED USERS; OR (V) UNAVAILABILITY CAUSED BY USE OR MAINTENANCE OF THE SERVICES BY CUSTOMER IN A MANNER NOT MATERIALLY CONFORMING TO THE GUIDANCE PROVIDED BY HWCS OR IN THE AGREEMENT. HWCS’S AGGREGATE LIABILITY TO THE CUSTOMER UNDER ANY THEORY OR FOR ANY REASON SHALL NOT EXCEED THE FEES PAID BY THE CUSTOMER FOR THE SERVICES GIVING RISE TO SUCH CLAIM FOR THE CALENDAR YEAR IN WHICH SUCH CLAIM AROSE.
- Indemnification of HWCS. To the extent permissible under applicable state law, Customer shall defend, indemnify and hold HWCS, its officers, employees, and agents harmless from and against any and all liability, loss, expense (including reasonable attorneys’ fees), or claims for injury or damages arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss, expense, attorneys’ fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the Customer, its officers, employees, or agents.
13. Governing Law
This Agreement will be governed by and construed under the laws of the State of Texas. The Parties further submit to and waive any objections to the personal jurisdiction of and venue in Austin, Texas for any litigation arising out of this Agreement.
If Customer is a United States public and accredited educational institution, then (a) this Agreement will be governed and construed under the laws of the state (within the United States) in which Customer is domiciled, except that body of law concerning conflicts of law; and (b) any litigation or other dispute resolution between Customerand HWCS arising out of or relating to this Agreement, the Services or Customer’s relationship with HWCS will take place in federal court within the Western District of Texas, and Customer and HWCS consent to the personal jurisdiction of and exclusive venue of the Western District of Texas unless such consent is prohibited by the laws of the state in which Customeris domiciled.
14. General Provisions
- Relationship of the Parties. This Agreement will not be construed as creating any agency relationship, or a general partnership, limited partnership, limited liability partnership, joint venture, fiduciary duty, or any other form of legal association between Customerand HWCS, and Customer will not represent to the contrary, whether expressly, by implication, appearance or otherwise. Except as otherwise expressly provided in this Agreement, this Agreement is not for the benefit of any third parties. Neither Party will make any commitment, by contract or otherwise, binding upon the other Party or present it has the authority to do so.
- Assignment; Resale; No Waiver. This Agreement will be binding upon and ensures the benefit of all of HWCS’s and Customer’s successors and assigns, which will be bound by all of the obligations of their predecessors or assignors. No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing and signed by a duly authorized representative of HWCS, and no single waiver will constitute a continuing or subsequent waiver.