eDynamic Holdings, LP (“eDynamic”) owns and operates the eDynamic website (“Website”) and the eDynamic web and mobile platform and app (“Services”) that enable public schools to manage and utilize digital education services. Your use of the Services is subject to all terms and policies posted on the Website or eDynamic applications, including the eDynamic Privacy Policy.  By accessing the Services and Website, you agree to abide by the terms of this End User License Agreement (together, with the Privacy Policy, the eDynamic Terms of Use, and eDynamic’s Terms and Conditions, the “Agreement”).

You represent that you are 18 years of age or older, are lawfully able to enter into contracts and agree to be bound by the Agreement. If you have entered into this Agreement on behalf of your organization, you represent that you have the authority to bind that organization to these terms and conditions. You further represent that you have the right to upload all data that you provide on behalf of yourself and, where applicable, your employees, your organization, agents, students and their parents or legal guardians, unless otherwise agreed to by eDynamic.

If you do not have the necessary authority, or if you do not agree with these terms and conditions, then you may not use eDynamic Services or Website.

You may print a copy of this Agreement using the print button or feature in your browser. We suggest retaining a copy for your future reference. You should be aware, however, that we may revise this Agreement at any time, however if we make a change to this Agreement that materially affects your use of the Services, we may post notice or notify you via email or our Website of any such changes. By your continued use of the Services or Website, you agree to be bound by future revisions. It is your responsibility to periodically visit this page to review the most current version of the Agreement.

1. The eDynamic Services and Website

Services. Subject to the terms and conditions of this Agreement, and where applicable, a separate contract with you and payment of any relevant fees, we will provide the Services for schools, school employees and parents/legal guardians of students that includes information collection and storage, and an administrator tool to view and manage the status of the information collection process, inclusive of the following: online storage for education information of End Users; accounts for End Users, subject to acceptance of the eDynamic Terms of Use, Privacy Policy, and this Agreement; importation of records from third parties at your discretion, provided that you have obtained all applicable consents.

The Services and Website, including the contents, are intended for your personal, noncommercial use.

We may, in our sole discretion and without prior notice, modify the Services or Website, remove or alter functionality, or cease provision of the Services or Website at any time.

2. Intellectual Property

Proprietary Rights and Trademark Notices.

The entire content of the Services and any supporting software or platforms are the proprietary property of eDynamic and/or its licensors, and are protected by U.S. and international copyright and other intellectual property laws. You have no rights to transfer or reproduce the Services or prepare any derivative works with respect to, or disclose confidential information pertaining to, the Services. Under no circumstances will you be deemed to receive title to any portion of any Services, title to which at all times will vest exclusively in us and our licensors. This is not a “work made for hire“ agreement, as that term is defined in Section 101 of Title 17 of the United States Code (“the Copyright Act“). You will preserve all Services from any liens, encumbrances, and claims of any individual or entity. You will not use any of our information or data to contest the validity of any of our intellectual property or our licensors. Any such use of our information and data will constitute a material, non-curable breach of this Agreement.  Unless otherwise indicated, trademarks that appear in these Services are trademarks of eDynamic or its affiliates. All other trademarks not owned by eDynamic or its affiliates that appear in the Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by eDynamic and its affiliates.  You agree not to display, disparage, dilute, or taint our trademarks in such a way that would misrepresent the ownership of such marks. Any permitted use of our trademark by you shall be to the benefit of eDynamic.

3. Use of the Services

Restrictions. You are responsible for using the Services and Website in accordance with this Agreement, and for all activity that occurs under your account. You shall (i) maintain the confidentiality of your user name and password and any user name or password of which you may become aware; (ii) notify eDynamic immediately upon awareness or discovery of a security breach of our Services or your systems that could impact our Services or related personally identifiable information; and (iii) use the Services in compliance with all applicable laws. You are solely responsible for all activities conducted using your access credentials to the Services. You represent and warrant that information provided to establish your account is true and accurate and that you will promptly update that information in the event of any change.

You grant us a non-exclusive, world-wide license to use the documents, information, graphics, data, content, and other materials uploaded by you to the Services and Website (the “Content”) solely for purposes of furnishing the Services and Website to you. You are solely responsible for obtaining all rights, permissions, and authorizations to provide the Content to us for use as contemplated under this Section. Except for the license granted in this Section and in Section VI, nothing contained in this Agreement will be construed as granting eDynamic any right, title, or interest in your Content.
You will not (and will not allow any third party to): (i) permit any third party to access and use the Services or Website; (ii) decompile, disassemble, or reverse engineer the Services or Website, except to the extent expressly authorized under the law; (iii) use the Services or Website or any of our confidential information to develop a competing product or service; (iv) impersonate another user of the Services or Website or provide false information to gain access to the Services or Website; (v) view or attempt to view records of another user; or (vi) use automated systems (e.g., robots, spiders, etc.) to access the Services or Website.

To the extent that the Service may provide you with an opportunity to upload material (“Uploads”), be advised that eDynamic has no obligation to screen, edit, or review such uploads prior to their appearance on the Service, and Uploads do not necessarily reflect the views of eDynamic.  In no event shall eDynamic have any liability or responsibility for the Uploads or (or the loss thereof for any reason) or for any claims, damages, or losses resulting from their use or loss and/or appearance on the Service.  eDynamic reserves the right to monitor the Uploads and to remove anything which it considers in its absolute discretion to be offensive, ineffective or otherwise in breach of this Agreement, eDynamic’s Terms of Use or Privacy Policy, or for any other reason as eDynamic deems necessary

You may not use the Services or Website to:

• Upload, post, e-mail or otherwise transmit any Content that is unlawful, harmful, threatening, intimidating, abusive, harassing, tortuous, defamatory, derogatory, vulgar, obscene, libelous, invasive of another’s privacy, disrespectful, hateful, or racially, ethnically or otherwise objectionable;
• Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Website or Services;
• Upload, post, e-mail or otherwise transmit any Content that you do not have the right to transmit under any law or under contractual or fiduciary relationships;
• Upload, post, e-mail or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• Upload, post, e-mail or otherwise transmit any material that contains software viruses or worms or any other computer code, files or programs designed to disable, interrupt, destroy, redirect, monitor another user’s usage, limit or otherwise inhibit the functionality of any computer software or hardware or telecommunications equipment;
• Use racially or ethnically offensive language; discuss or incite illegal activity; use explicit/obscene language or solicit/post sexually explicit images;
• Interfere with or disrupt the Website, Services or servers or networks connected to the Website or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or Services; or
• Intentionally or unintentionally violate any applicable local, state, Federal or international law or regulation.

4. Privacy

We are committed to maintaining your privacy, and maintain a Privacy Policy, which may be viewed here. All data you provide to us is subject to the terms maintained in the Privacy Policy.

5. Family Educational Rights and Privacy Act (FERPA)

Our Services comply with all applicable provisions of the Family Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99).  We receive Student Data from Schools as a “school official” under FERPA and only process Student Data for educational purposes.

6. Feedback; Aggregated Data

You may provide us with suggestions, comments or other feedback (collectively, “Feedback“) with respect to our products and services, including the Services and Website. Feedback is voluntary. We may use Feedback for any purpose without obligation of any kind in connection with our business, including the enhancement of the Services and Website. In addition, you agree that we may use aggregated, de-identified data (i.e., the data is not identifiable to any individual and has been de-identified in accordance with applicable legal requirements) to demonstrate the effectiveness of eDynamic Services, including in eDynamic marketing materials, to improve eDynamic Services and to develop and improve other educational products.

7. Links

The Website may contain links allowing you to leave the Website for other sites that are not under our control. Any such links are provided for your convenience, and inclusion of links on the Website does not suggest an endorsement. We are not responsible for the contents or transmission of any linked site or for ensuring that the linked sites are error and virus free. Linked sites are subject to their own terms of use and privacy policies, and we encourage you to read them.

8. Fees

If you elect Services for which a charge is imposed, you are obligated to pay those fees. All fees are non-refundable. Late payments will be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. You are responsible for paying all personal property, sales, use and other taxes (excluding taxes based upon our net income) and license and registration fees and other assessments or charges levied or imposed by any governmental body or agency as a result of the execution or performance of this Agreement, including your receipt of the Services. We will not change fees without your prior written agreement.

9. Indemnification

You agree to indemnify eDynamic and hold it and its subsidiaries, affiliates, officers, licensors, contractors, directors, employees, and agents harmless from any and all claims, actions, proceedings, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees and all related costs and expenses) made against eDynamic by any third party arising out of your use of the Service, your breach of any representation, warranty or obligation, your violation of this Agreement, or your violation of any rights of another user.

10. Suspension of Services and Removal of Content

We may, in our sole discretion, suspend your access to the Services or remove any Content from the Services or Website for any of the following reasons: (i) to prevent damages to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; and (iii) to otherwise protect us from potential legal liability. We will restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on us to monitor use of the Services or Website.

11. eDynamic’s Liability

A. DISCLAIMER OF WARRANTIES

THE SERVICES AND WEBSITE ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EDYNAMIC IS NOT OFFERING THE SERVICES OR WEBSITE, IN WHOLE OR IN PART, FOR SALE TO YOU. THESE TERMS ARE NOT A CONTRACT FOR SALE, AND THIS WEBSITE IS NOT A “GOOD” WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE. INSTEAD, THIS WEBSITE IS PROVIDED FOR FREE. EDYNAMIC AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,  QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT, AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF THE SERVICES AND WEBSITE ARE AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EDYNAMIC OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF EDYNAMIC’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT EDYNAMIC AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE THE CONTENT, WEB SITES, COMPUTERS, OR NETWORKS. WE WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.

With respect to the Website, you agree that our sole obligation to you is to provide the Website as-is. You agree that unless we do something that is (a) grossly negligent, reckless, or an act of knowing or intentional willful misconduct or (b) a violation of a consumer protection statute in connection with the Website, we will not be liable to you or to any third party for your use of the Website.

B. LIMITATION OF LIABILITY AND DAMAGES

NEITHER EDYNAMIC NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXAMPLARY DAMAGES, DAMAGES FOR THE LOSS OF PROFITS, GOODWILL, USE OF DATA OR BUSINESS, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF EDYNAMIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE LOSS OF DATA AND/OR THE USE OR INABILITY TO USE THE SERVICE; (II) THE COST OF PROCURING SUBSTITUTE SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCTS OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. THE TOTAL LIABILITY OF EDYNAMIC AND ITS VENDORS AND LICENSORS TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT) WILL NOT EXCEED THE TOTAL FEES YOU PAID, IF ANY, DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES PROVIDED ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages.  Accordingly, the limitations above may not apply to you.

12. Governing Law, Venue, and Limitation of Actions

This Agreement and your relationship with eDynamic will be construed according to, and the rights of the parties will be governed by, the law of the State of Texas, without reference to its conflict of laws rules. Any action at law or in equity arising out of or directly or indirectly relating to these  may be instituted only in the Federal or state courts located in Southlake, Texas. You consent and submit to the personal jurisdiction of those courts for the purposes of any action related to the Services and this Agreement, and to extra-territorial service of process. The failure of eDynamic to exercise or enforce any right or provision of the this Agreement shall not constitute a waiver of such right or provision.  If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect. No action, regardless of form, arising out of the Services or this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen.

This Agreement, together with the eDynamic Terms of Use and Privacy Policy, constitutes the entire agreement between you and eDynamic, govern your use of the Service, and supersedes any agreements between you and eDynamic concerning the Service. You may also be subject to additional terms and conditions that apply when you use affiliated services, third party content or third party software.

13. Affiliates, Subcontractors and Vendors

Some or all of the Services, including support, may be provided by our affiliates, agents, subcontractors and information system vendors. Our rights and obligations may be, in whole or in part, exercised or fulfilled by the foregoing entities.

14. Assignment

You may not assign this Agreement without the prior written consent of eDynamic.  eDynamic reserves the right to assign this Agreement to its successors, affiliates, and subsidiaries without consent.

15. Severability

If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.

16. Entire Agreement

This Agreement, as may be amended from time-to-time by us, constitutes our entire agreement with regard to the Services and Website.

17. Waiver

Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.

18. Force Majeure

Except for the payment of fees, as described in this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.

19. Class Action Waiver

Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action. Your access and continued use of any of our Services and Website signifies your explicit consent to this waiver.

20. Termination

eDynamic reserves the right at any time to discontinue, temporarily or permanently, the Service or any part thereof or terminate any user’s access to the Service or any part thereof.  We may also modify, delete or adapt the Service at any time without any notice or obligation to the user at eDynamic’s sole discretion. Your right to use and otherwise access the Service is automatically terminated if you violated the Terms of Use. You agree that eDynamic will not be liable to you or any third party for any modification, suspension, or discontinuation of the Service, or any part thereof. Upon termination for any reason, you must cease all access to the Service.  All provisions of the Terms of Use as to limitation and disclaimer of warranty, limitation of liability, eDynamic’s ownership rights and your representations and indemnities shall survive termination.

21. Digital Millennium Copyright Act

If you have any copyright concerns about any materials posted on the Service by others, please let eDynamic know. We comply with the provisions of the Digital Millenium Copyright Act (17 U.S.C. § 512).  Unless otherwise stated in any specific DMCA designation provided by eDynamic, please provide us with written notice (“Notice”) by contacting our designated agent at the following address:

DMCA Designated Agent, eDynamic

1256 Main Street, Suite 256

Southlake, TX 76092

Email: support@edynamiclearning.com

To be effective, the notice must include the following:

• A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, (“Complaining Party”) of an exclusive right that is allegedly being infringed upon;
• Information reasonably sufficient to permit eDynamic to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address;
• Identification of the allegedly infringing material on the Service (“Infringing Material”) , and information reasonably sufficient to permit eDynamic to locate such material on the Service;
• Identification of the copyrighted work claimed to have been infringed upon (“Infringed Material”), or if multiple copyrighted works on the Service are covered by a single Notice, a list of each copyrighted work claimed to have been infringed (please be specific as to which Infringing Material is infringing on which infringed Material);
• A statement that the Complaining Party has a good faith belief that use of Infringing Material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the Notice is accurate, and under penalty of perjury, that the Complaining Party is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.