This Subscription Agreement and Terms of Service (“Agreement”) between You and XceptionalLEARNING details the terms and conditions under which You are permitted to use certain Services offered by XceptionalLEARNING. This Agreement applies to paid, free trial or any other form of usage. For any questions on this Agreement, please write to us at [email protected]
Notice to user: Please read this Terms of Service (“Agreement”) carefully before using the XceptionalLEARNING Platform (also referred to as “Platform”) for delivering teletherapy services; accessing the content library; accessing continuing education courses or other related services delivered through the Platform (collectively referred as “Services”). The Services are offered by XceptionalLEARNING , Inc. (“XceptionalLEARNING”) and by clicking or selecting the “I Agree” button or check box, or by executing an Order or by using in any manner the Services offered by XceptionalLEARNING, You (either as an individual, clinician or through your organization or representing an End Customer / User) agree to be bound by the terms and conditions of this Agreement. By using the Services, you also agree that You are authorized to represent Your organization or End Customer / End User and bind Your organization or End Customer / User to the terms and conditions of this Agreement. If You do not agree to the terms and conditions of this Agreement, You should not accept this Agreement and shall not use the Services.
XceptionalLEARNING owns all rights, interest, title / ownership and all intellectual property and any Derivative Works in the Platform, Components, Courses, Improvements and Services. XceptionalLEARNING permits You to Use the Services only in accordance with the terms and conditions of this Agreement. For some third-party materials, components or third-party software included in the Platform and Services, XceptionalLEARNING has the right to sublicense the same to You under the terms and conditions in this Agreement and such third-party software may be subject to other terms and conditions typically found in a separate license agreement.
1.1 “Affiliates” means any entity that is controlled or under common control of XceptionalLEARNING or End User. For End User, this also includes a third-party authorized by End User to operate under its Agreement.
1.2 “Agreement” means this Subscription Agreement and Terms of Service and includes any other Order or arrangement which lets You Use the Services.
1.3 “Derivative Work” shall mean a work created by You based on or incorporating a portion of or the complete Services and or the Documentation, including but not limited to translations, abridgements, condensations, improvements, updates, enhancements, or any other form in which the Services and / or the Documentation that may be recast, transformed, adapted, or revised.
1.4 “End Customer / User” or “Customer” means the beneficiary of the Services which could be an individual, organization / company / or individuals within a company / organization.
1.5 “Effective Date” shall be the date of the agreement or an Order or other formal means by which You have subscribed to the Services with XceptionalLEARNING or with an authorized third party. In all other cases, Effective Date shall mean the date You subscribe to Services using online subscription offered by XceptionalLEARNING.
1.6 “Improvement(s)” means all developments and changes to the Platform including but not limited to bug fixes, enhancements, feature additions, improvements, updates and or upgrades.
1.7 “Order” means a purchase / sales order, or any written order placed with XceptionalLEARNING specifying the Services subscribed, the number of users, the Term, Effective Date and other details as required to start or continue Using the Services.
1.8 “Permitted Number,” shall mean the number of subscriptions authorized to You for usage pursuant to an Order or a proposal or a contract or a separate arrangement executed between You and XceptionalLEARNING or a third-party authorized by XceptionalLEARNING to offer the license for subscription to Services. If You are using the Services subsequent an online subscription through XceptionalLEARNING, Permitted Number shall mean the number of licenses You have subscribed through such online subscription.
1.9 “Platform” shall mean the teletherapy platform, content library platform, continuing education platform and other offerings provided by XceptionalLEARNING to its subscribed users either directly or through authorized third parties. The Platform shall also include without limitation, all software application in source code or object form used in developing the Platform; content library developed and offered by XceptionalLEARNING and other content(s) offered by third parties (collectively referred as “Content Library”); third-party software or application(s) or components used in the Platform for providing Services (collectively referred as “Components”); all technical documentation, technical and non-technical training material, source code documentation in any form, source code manual etc. (collectively referred as “Documentation”); continuing education materials and courses developed and offered by XceptionalLEARNING and other third parties (collectively referred as “Courses”) and all other Improvements to the.
1.10 “Subscription Term” or “Term” shall mean the period for which You have subscribed to the Services for the Permitted Number of users or subscriptions either online through authorized websites or by an Order or by any other authorized means. For free / trial subscription, Term means the period for which such free / trial Usage has been authorized by XceptionalLEARNING.
1.11 “Use” or “Using” or “Usage” means to access, use or copy the Services or otherwise benefit from using the functionality of the Services including viewing or receiving of reports using the Services. Use or Using or Usage also includes Use of the Services by Your consultant or sub-contractors or End Customer / User or third party who is authorized to Use the Services as set forth or explained in this Agreement.
1.12 “XceptionalLEARNING” means XceptionalLEARNING, Inc. and any of its Affiliates.
1.13 “You” or “Your” shall mean the person or individual authorized to use the Services either as an individual or through a company or organization or representing a Customer or an End User which has a valid subscription and or has access to the Services.
2. GRANT OF LICENSE.
2.1 As long as You comply with the terms of this Agreement, XceptionalLEARNING grants You a non-exclusive, non-transferable, non-sublicensable license to access and Use the Services during the Term of the subscription.
2.2 General Use. You may access and Use the Services up to the Permitted Number of subscription(s) and only during the Term of this Agreement. You are solely responsible for Your use of the Services and shall abide by, and ensure compliance with, all laws while using the Services including but not limited to laws related to recording, intellectual property, privacy, and export control.
2.3 Business Use. If You are a company, organization or business, You shall ensure that the users authorized by You shall comply with the terms and conditions in this Agreement and You shall ensure that such usage is restricted to delivering online therapy on Your behalf or for accessing the Content Library and Courses to deliver online therapy on your behalf. You are restricted from granting access to special educators working as employees or contractors with schools and districts, clinicians’ workings for other clinics etc. However, You may grant access to employees and consultants employed by You.
2.4 Compliance to HIPPA guidelines. You shall ensure that You comply with all HIPPA guidelines with respect to storing, accessing and use of information about participants including patients requiring teletherapy and the Services offered by XceptionalLEARNING.
2.5 Best Business Practices. You shall follow all the best business practices and ensure to conduct in a professional manner while using the Services. You shall ensure that (a) You have necessary rights to share content or information and that You do not violate any intellectual property right while sharing such content or information as part of using the Services; (b) You shall not share information which is inappropriate for the occasion including obscene, defamatory, pornographic, offensive, or information that is racist, spreads hatred etc.; (c) You shall not publish or share any unsolicited information including marketing of products or services; and (d) You shall not engage in activity that is illegal or does not fit the primary purpose of using the Services.
2.6 Access during Courses. You may have access to content as part of Course and You agree not to copy or use the Courses in any form that causes harm to XceptionalLEARNING either directly or indirectly.
2.7 Improvements. XceptionalLEARNING has the right to deploy Improvements to Services at any time and such Improvements are subject to the terms of this Agreement.
3.1 You shall not Use the Services beyond the number of users you have subscribed for.
3.2 You shall not modify, adapt, copy or translate the contents of the Platform and Services. You shall not reverse engineer, decompile, disassemble or modify any portion of the Platform and or Services or merge portion of the Platform and Services, in whole or in part, nor shall otherwise attempt to discover the source code or develop a source code version of the Platform and or Services.
3.3 Unless otherwise specified through a separate written arrangement with XceptionalLEARNING, the Services or Usage are offered only as subscriptions. You may add new users during the Term by paying the subscription fee as offered by XceptionalLEARNING at the time of such addition.
3.4 You shall not modify or copy the Services and related materials to create Derivative Works.
3.5 You shall not sublicense, assign, or transfer the license granted hereunder or any part of the Services, except as expressly provided in this Agreement and that any attempt to do so shall be invalid and will automatically terminate the license or subscription to Services and this Agreement.
3.6 XceptionalLEARNING shall retain title to the Platform and Services including any Derivative work, trademarks, all written Documentation, and any ancillary data or information concerning the Services. XceptionalLEARNING also retains all rights in copyrights or patents applicable to the Services, including the computer programs, all ancillary written documentation, and materials.
3.7 Transfer and Assignment. This license is to the original buyer (You) and You may not sell or assign or transfer to or permit usage by another person/entity except with the written permission of XceptionalLEARNING. You may not, rent, lease, sublicense, assign or transfer your subscription. You may, however, transfer or assign all Your rights to Use the Software to another person or legal entity as a part of permanent sale or transfer of Your business provided that: (a) You also transfer (i) this Agreement; (b) You retain no copies of credentials to access the Services and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which You legally acquired a license for the Services.
3.8 Warranty. XceptionalLEARNING represents and warrants that (a) it has the right to grant You all rights and licenses granted under this Agreement; (b) the Services does not infringe upon any copyright, trademark, or any intellectual property right of any third party and (c) the performance or results You may obtain by Using the software. You accept the license to Services is granted “as is,” with no other express or implied warranties or conditions of any kind, including, without limitation, warranties of merchantability or fitness for a particular purpose. XceptionalLEARNING makes no warranties regarding the application(s) or the media of the products owned or developed by You or with respect to any third-party software. XceptionalLEARNING makes no representations or warranties of any kind with respect to any Components used in Services. To the extent permitted by XceptionalLEARNING’s contract with the owner of any such Components, XceptionalLEARNING will assign to You any rights that XceptionalLEARNING may have under such owner’s warranty.
3.9 Non-Compete. You agree that You will not granting access to special educators working as employees or contractors with schools and districts, clinicians’ workings for other clinics etc. to provide online therapy and related services using XceptionalLEARNING’s Services. You also agree that, unless agreed in writing by XceptionalLEARNING or subject to a separate agreement, You will not be using Services offered by XceptionalLEARNING (to Your clients including but not limited to school districts and clinics) either to be bundled or integrated with Your offerings or solutions.
3.10. No Rental / Commercial Hosting / Webinar / Broadcasting. You agree not to rent, host or broadcast as a webinar or otherwise, the Services, the Courses, Content Library etc. offered by XceptionalLEARNING without prior written consent by XceptionalLEARNING.
3.11. Consent to use data. You agree that XceptionalLEARNING may collect and use information gathered as part of the Services provided to You for improving the quality of Services or providing customized services. You agree to the use of such collected data by XceptionalLEARNING.
4. INDEMNIFICATION AND PATENT INFRINGEMENT.
4.1 XceptionalLEARNING represents that it owns all patented or copyrighted material contained in and all trade secrets with respect to the Services, Documentation, Content Library, Courses except for Components used in Platform and Services. XceptionalLEARNING represents and warrants that it has all necessary rights and licenses to carry out its obligation under this Agreement.
4.2 You shall promptly notify XceptionalLEARNING in writing of the assertion of any such claim that the Services violates the trade secret, trademark, copyright, patent, or other proprietary right of any other party. You shall cooperate with XceptionalLEARNING in investigating and resolving any such claim. XceptionalLEARNING shall defend You against any such claims and shall indemnify and hold You harmless from any liability for damage and costs, arising out of the subject matter of this paragraph incurred in connection with any such claim provided that (a) XceptionalLEARNING is informed in writing within 48 hours of such claim and (b) XceptionalLEARNING shall have the sole control of the defense and settlement.
4.3 Notwithstanding anything else to the contrary in this Agreement, XceptionalLEARNING shall not indemnify You against any claim or liability based on Your (including Your consultant’ or subcontractors or third parties authorized to use the Services) (a) modification or conversion of the Services or (b) the subsequent use of such modification or conversion or (b) the use or combination of the Services with other services software or Computers programs or data not supplied by XceptionalLEARNING.
4.4 You agree to indemnify and hold XceptionalLEARNING, its partners, directors, officers, employees and agents harmless from any and all liabilities, losses, actions, damages, or claims (including all expenses, costs, and attorney’s fees) arising out of Your ( including Your consultant’s , sub contractor’s or third parties authorized to Use the Software) (a) gross negligence or willful misconduct (b) improper Use and or installation of the Software; (c) reliance on any claims, misrepresentation or warranties not made by XceptionalLEARNING (d) negligence or willful misconduct resulting in any death or bodily injury; (e) violation of intellectual property rights of XceptionalLEARNING (f) unauthorized Use or licensing or Distribution of the Services , report templates and reports; (g) modification or conversion of the Software or the subsequent use of such modification or conversion; (h) violation of confidential information and (i) violation of any export laws or any other act.
4.5 If the Services becomes or, in XceptionalLEARNING’ opinion is likely to become the subject of the claim of infringement of a patent, trade secret or copyright, XceptionalLEARNING may either (i) procure at no cost to You, the right to continue to Use the Services during the Term, (ii) replace modify the Services at no cost to You to make the Services non-infringing, provided that the same function is performed by the replacement or modifications, or (iii) if any of the above alternatives are not commercially viable, terminate the Agreement and the right to use such Services and where a specific fee was paid by You during the 3 month period prior to such infringement claim and grant You a credit thereon.
5. INTELLECTUAL PROPERTY OWNERSHIP, COPYRIGHT PROTECTION.
The Platform and the Services offered by XceptionalLEARNING to You under this Agreement are the intellectual property of XceptionalLEARNING and are owned by XceptionalLEARNING. The structure, organization and code of the software or computer programs in developing the Platform and Services are the valuable trade secrets and confidential information of XceptionalLEARNING. The intellectual property in the Platform and the Services is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant You any intellectual property rights in the Platform and Services or any rights to trademarks or service marks of XceptionalLEARNING and all rights not expressly granted are reserved by XceptionalLEARNING.
6. LIMITATION OF LIABILITY.
In no event will XceptionalLEARNING be liable to You or to any third party for any damages, claims or costs whatsoever or for any consequential, indirect, incidental damages, or for any lost profits or lost savings, even if XceptionalLEARNING has been advised of the possibility of such loss, damages, claims or costs. In no event will XceptionalLEARNING’s aggregate liability under or in connection with this Agreement exceed the amount paid by You for the licenses and the unexpired portion of support / maintenance fees.
7. GOVERNMENTAL REGULATIONS AND RESTRICTIONS
You agree that the Services provided under this Agreement may be subject to regulations including export laws of countries where Services are offered including United States of America. You are solely responsible for monitoring and complying with regulations including export laws of the specific country where Services are offered and performed.
8. GENERAL PROVISIONS.
8.1 If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms.
8.2 This Agreement shall not prejudice the statutory rights of any party dealing as a consumer.
8.3 This Agreement may only be modified by a writing signed by an authorized officer of both parties.
8.4 This is the entire Agreement between XceptionalLEARNING and You relating to the Services and it supersedes any prior oral or written agreements or representations or discussions or undertakings or communications or proposals or advertising relating to the Software.
8.5. You agree that upon request from XceptionalLEARNING or XceptionalLEARNING’s authorized representative, You will within thirty (30) days fully document and certify that Use of any and all of the Services at any time is in conformity with the Permitted Number subscribed from XceptionalLEARNING and Used as per the terms and conditions of this Agreement.
9. COMMERCITAL TERMS, TERM AND TERMINATION.
9.1 Commercials. You shall pay the periodic subscription for accessing and Using the Services as and when due for uninterrupted use of Services. Taxes if any on such subscription of license fee shall be charged additional to You as part of subscription / license fees. Fees paid once are not refundable either in part or in full.
9.2 Subscription based on an Order. If You have subscribed to the Services based on an Order, You agree to pay the specified applicable fees and as per the payments terms specified therein. It is clarified that the fees are based on subscription purchased and not on actual use of Services.
9.3 Invoicing and Payment. If You have subscribed to the Services based on an Order, XceptionalLEARNING will raise an invoice for each applicable period. The first invoice would be raised upon execution of the Order and subsequent invoices would be raised in advance of each renewal period. In case of subscription made online, no invoice shall be raised separately. If XceptionalLEARNING is provided with credit card for processing payment either along with the Order of separately or as part of online subscription, it is deemed that XceptionalLEARNING is authorized to charge the credit card for the fees specified in Order and the applicable fees for any renewal.
9.4 Subscription Term or Term. The term of this Agreement shall be valid from Effective Date until (a) the end of the period for which payment has been made; (b) You or XceptionalLEARNING cancel the license or subscriptions subject to 9.3; (c) the end of the period for which the free trial was offered and (c) the license or subscription is automatically terminated as mentioned in Section 9.4.
9.5 Cancelation of subscription or License. You may terminate this subscription or license at any time by accessing Your account. However, the fees paid for the unexpired portion of the term upon cancelation is non-refundable. XceptionalLEARNING may terminate or cancel the license or subscription upon non-payment or for violation of terms and conditions of this Agreement.
9.6 Automatic Termination. The license to Services shall be terminated automatically either upon (a) expiry of the Term or (b) nonpayment or (b) violation of the terms and conditions in the Agreement.
9.7. Usage post termination. Upon expiration of Term or termination of license / subscription as explained in Section 9, You will immediately lose access to Platform, Services, Components, Courses and Improvements. You will be liable for legal action and damages for any usage beyond the expiration of Term.
9.8 Survival Provisions. The provisions of Section 4, 5 6 and 7 shall survive the termination of this Agreement.
10. GOVERNING LAW
This Agreement will be construed in accordance with and governed by the laws of the State of California and the United States of America that would be applied to contracts entered between California residents to be performed entirely within California without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.
11. JURISDICTION; WAIVER OF JURY TRIAL
Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal proceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of California or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to personal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara, State of California. Each party hereby waives its right to a jury trial for any claims that may arise out of this Agreement.
Assignment. Without the prior written consent of XceptionalLEARNING, You will not assign or otherwise transfer Your rights and obligation(s) in whole or in part, under this Agreement, and any attempt to do so will be null and void. However, XceptionalLEARNING may transfer or assign its rights under this Agreement to a third party.
13. LINKS TO THIRD PARTY SITES
XceptionalLEARNING is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. Any links provided and the inclusion of any third-party links by XceptionalLEARNING does not imply an endorsement by XceptionalLEARNING of the third-party site or their products or services.
14. FORCE MAJEURE
In no event shall XceptionalLEARNING be liable for any failure or deficient or delay in performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or disturbances or malfunctions of utilities, internet and communications, or computer and server (software and hardware) services.
15. SUPPORT FOR SERVICES
As long as You have a valid subscription, XceptionalLEARNING shall, during the Term of this Agreement, provide technical support for the Services according to XceptionalLEARNING’s then prevailing support policies and standards.
You acknowledge that You have fully read this Agreement, understands it, and agree to be bound by its terms and conditions.
CONTACT: XceptionalLEARNING. Inc., 2000 W Hedding St, Ste 214, San Jose, CA 95128, USA.