- Terms of Service Agreement
Effective Date: September 5, 2019
Terms of Service Agreement
This TERMS OF SERVICE AGREEMENT (this “Agreement”) is entered into by and between Public Consulting Group, Inc. (“PCG”), a Massachusetts corporation, and the individual accessing the Service as defined below (the “User”). Each of PCG and User are referred to as a “Party” and are collectively referred to as the “Parties” from time to time in this Agreement.
BY LOGGING INTO, ACCESSING, VIEWING, DOWNLOADING, OR OTHERWISE USING ANY PART OF THE SERVICE (AS DEFINED BELOW), USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE USER SHALL INDICATE NON-ACCEPTANCE, PCG WILL, IF APPLICABLE, PROMPTLY INACTIVATE USER’S ACCOUNT, AND USER SHALL NOT ACCESS OR USE ANY PART OF THIS SERVICE.
PCG reserves the right, at its sole discretion, to change, modify, add/or delete portions of this Agreement at any time without further notice. If PCG does this, it will post the changes to this Agreement on this page and will indicate at the top of this page the date upon which the most recent version of this Agreement became effective. User’s continued use of the Service after any such changes constitutes User’s acceptance of the new Agreement.
1. Service Terms and Limitations.
PCG’s Professional Learning Platform service and any associated mobile application (together, the “Service”) and all content made available via the Service, other than content submitted by User (the “Content”), is proprietary to or used under license by PCG and is protected by intellectual property laws and treaties. Any content submitted by User is referred to within this Agreement as “User Content”. User’s access to the Service is licensed and not sold. Subject to the timely payment of all Fees (as defined below in Section 3(A)) and the terms and limitations set forth in this Agreement and, to the extent applicable, set forth in the PCG-Organization Contract and/or License (each defined below), PCG agrees to provide User with a limited, revocable, personal, non-transferrable, and non-exclusive license to enable User to access and use the Service and the Content during the term of this Agreement.
B. Governing Documents; Order of Precedence.
User’s access to the Service shall be governed by (i) this Agreement; (ii) to the extent applicable, the purchase order for a license by and between PCG and User (the “License”); and (iii) to the extent applicable, the separate agreement by and between PCG and User’s organization with respect to use of the Service (the “PCG-Organization Contract”). In the event of any conflict between the terms of this Agreement, the License, and the PCG-Organization Contract, the following order of precedence shall govern:
i. The PCG-Organization Contract
ii. The License
iii. This Agreement
User shall not:
i. Sell, market, rent, sub-license, or license any aspect of the Service or the Content (whether owned by PCG or licensed by PCG) or otherwise use the Service for any purpose other than as specifically provided in the PCG-Organization Contract (if applicable) or this Agreement;
ii. Decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer, or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure, or other elements of the Service in whole or in part, for competitive purposes, or otherwise;
iii. Allow access to, provide, divulge, or make available the Service or the Content to any person other than those who have licenses to access the Service or the Content;
iv. Write or develop any derivative works based upon the Service or the Content;
v. Modify, adapt, translate, or otherwise make any changes to the Service or the Content or any part thereof without PCG’s prior written consent;
vi. Use the Service to provide processing services to third parties, or otherwise use the same on a “service bureau” basis;
vii. Disclose or publish, without PCG’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Service;
viii. Remove from the Service or the Content identification, patent, copyright, trademark, or other notices or circumvent or disable any security devices, functionality, or features; or
ix. Use the Service or the Content in any manner that violates applicable law, rule, or regulation
User obtains no ownership rights or any other rights in PCG’s owned or licensed intellectual property or the Service, other than those specified in this Agreement. User grants PCG a limited license to use User’s transactional, performance and usage data related to User’s use of the Service (e.g., statistical information about the number of claims processed) solely on an aggregated and de-identified basis as part of PCG’s internal marketing, business development, and analytical purposes
User agrees that from time to time the Service may be inaccessible or inoperable for any reason and without notice, including, without limitation:
i. Equipment malfunctions;
ii. Periodic maintenance procedures or repairs which PCG may undertake from the time to time; or
iii. Causes beyond the control of PCG or which are not reasonably foreseeable by PCG.
E. Equipment and Data
User shall be solely responsible for providing, maintaining, and ensuring compatibility with the Service, all hardware, software, electrical, and other physical requirements for User’s use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers, or other equipment, programs, and services required to access and use the Service. User shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of any and all data that User submits to the Service.
F. External Links
The Service may contain hyperlinks to websites operated by third parties. PCG cannot and does not control such websites and will not be responsible for their content, or for any breach of contract, or any intentional or negligent action on the part of such third parties, which results in any loss, damage, delay, or injury to User or User’s companions. Inclusion of any linked website on the Service does not imply or constitute approval or endorsement of such linked website by PCG. In the event that User decides to leave the Service in order to access any such third-party site, User is doing so at his or her own risk. All rules, policies (including privacy policies), and operating procedures of websites operated by third parties will apply to User while on such sites. In no event shall PCG be responsible for information provided by User to third parties.
G. Electronic Communications
Visiting the Service website, using the Service or the Content, or sending emails to PCG constitutes electronic communications. User hereby consents to receive electronic communications and agrees that all agreements, notices, disclosures, and other communications that PCG provides to User electronically, via email, and on the Service, satisfy any legal requirement that such communications be in writing. In order to opt out of receiving marketing emails from PCG, User may follow the “unsubscribe” link on the email to change User’s preferences. There are certain system-generated and legal notices that User cannot opt out of without deactivating User’s account.
User shall be solely responsible for the security, confidentiality, and integrity of all messages, content, and other information that User receives, transmits through, or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all responsibility for the confidentiality of User’s password and all use or charges incurred from user of the Service with User’s password. PCG shall have no liability for any loss or damage arising from User’s failure to comply with these requirements.
PCG respects Users’ privacy. However, no data transmission over the Internet, mobile networks, wireless transmission or electronic storage of information can be guaranteed to be 100% secure. Please note that PCG cannot ensure the security of any information User submits or transmits to PCG, and that User uses the Service and provides PCG with his or her information at User’s own risk.
C. Applicability of Courses
Certain courses offered on the Service may fulfill requirements for license renewal/lane change where the User has obtained proper prior approval. Notwithstanding the foregoing, PCG cannot and does not warrant or guarantee that courses on the Service will meet User’s intended needs. Many schools, districts, and states have different requirements for professional development. It is solely the User’s responsibility to coordinate with User’s district personnel or State Department of Education in order to gain prior approval for the courses purchased on the Service. Applicability of courses on the service is the sole responsibility of the User.
D. International Use of the Service
i. PCG controls and operates the Service from the United States, and information is processed within the United States. PCG does not represent that materials on the Service are appropriate or available for use in other locations. Users who choose to access the Service from locations outside of the United States do so at their own volition, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
ii. User agrees to comply with all applicable laws, rules and regulations in connection with his or her use of the Service. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which User resides.
iii. To the extent User accesses the Service from locations outside the United States, User agrees that any information provided to or though the Service may be processed in the United States.
User shall pay for use of the Service and for all courses in which User enrolls through the Service. PCG may charge/debit User’s credit card or other designated payment method for any Service use or course enrollment, and for any additional amounts (including any taxes, fees, or other charges) that may be accrued by or in connection with User’s use of the Service or course enrollment (together, “Fees”).
The total price to User for Service use or course enrollment will include applicable taxes, if any, based on the bill-to address provided by User. Prices may change at any time, and the prices set forth on the Service website do not provide for price protection or for refunds in the event of any subsequent price reduction or promotional offering.
C. Finality of Sales
Given the nature of digital content, all sales are final and unfortunately, PCG cannot offer any refunds for the Service.
4. User Content, Disclosure of Information, and Unsolicited Ideas and Materials
A. User Content
i. The Service may include an interface through which Users can post messages and respond to the messages of others. PCG does not assert any ownership over User Content and, except for the below license, User retains all rights that he or she may have in the User Content that User posts or uploads. By posting User Content to the Service User grants, and User represent and warrant that he or she has a right to grant, to PCG and its affiliates for any purpose, a non-exclusive, transferable, fully paid, perpetual, worldwide license (with the right to sublicense) to use, copy, display, perform, distribute, translate, edit, and create derivative works based upon User Content.
ii. User may not post, transmit, or share User Content that User did not create on the Service unless User owns rights in such User Content or has permission to post such User Content from the owner of such content. User understands and agrees that the PCG may, but is not obligated to, review the Service 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 the sole judgment of PCG violates this Agreement, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. User is solely responsible at his or her sole cost and expense for creating backup copies and replacing any User Content that User posts or stores on the Service or provides to PCG
B. Disclosure of Information
i. User agrees not to disclose to any person or entity personally identifiable information about other members that User learns while using this Service without the express consent of such member. User may disclose information of a general nature (that could not identify the member who provided such information or whom such information is about) to third parties outside this Service, subject to the below restriction on non-commercial use.
C. Unsolicited Ideas and Materials
i. In User’s communications with PCG, unless expressly requested from User, PCG does not seek any unsolicited ideas or materials, e.g., materials that User authored (the “Unsolicited Ideas and Materials”), for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for scientific tools or otherwise. Any information and materials User posts on or sends to PCG via the Service are deemed Unsolicited Ideas and Materials and are licensed to PCG as set forth below. User agrees that: (a) his or her Unsolicited Ideas and Materials will be treated as non-confidential – regardless of whether User has marked them “confidential,” “proprietary,” or the like – and will not be returned; and (b) PCG does not assume any obligation of any kind to User or any third party with respect to User’s Unsolicited Ideas and Materials.
ii. By providing Unsolicited Ideas and Materials to PCG or others via the Service or via any associated app, User hereby grants to PCG a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, resell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of User’s Unsolicited Ideas and Materials (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.
iii. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such Unsolicited Ideas and Materials and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any Unsolicited Ideas and Materials for any purposes whatsoever, including developing, producing, and marketing products and/or services.
iv. In order to further effect the rights and license that User grants to PCG to User’s Unsolicited Ideas and Materials, User also hereby grants to PCG, and agrees to grant to PCG, the unconditional, perpetual, irrevocable right to use and exploit User’s name, persona, and likeness in connection with any User Content and Unsolicited Ideas and Materials, without any obligation or remuneration to User.
v. Except as prohibited by law, User hereby waives, and agrees to waive, any moral rights (including attribution and integrity) that User may have in any Unsolicited Ideas and Materials, even if it is altered or changed in a manner not agreeable to User. To the extent not waivable, User irrevocably agrees not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. User understands that he or she will not receive any fees, sums, consideration, or remuneration for any of the rights granted herein.
5. User Representations
User represents and warrants to PCG that:
A. To the extent a person, User is (i) over the age of eighteen (18); and (ii) has the legal authority to bind himself or herself with respect to agreements, including, but not limited to, this Agreement;
B. User has the power and authority to enter into and to perform User’s obligations under this Agreement;
C. All information provided by User to PCG is truthful, accurate, and complete;
D. User shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth in Section 5; and
E. User has provided and will provide accurate and complete registration information, including, without limitation, User’s legal name, entity affiliation (if applicable), address, email address, and telephone number.
Violation of any of these representations is cause for PCG to suspend and/or terminate User’s access to the Service immediately and without notice.
6. Acceptable Use
User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the Services. Without limiting the generality of the foregoing, User agrees that User shall not, and that User Content shall not:
A. Violate any law or regulation, or to facilitate the violation of any law or regulation;
B. Disseminate, store, or transmit unsolicited messages, chain letters, or unsolicited commercial email;
C. Disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or abusive;
D. Disseminate, store, or transmit files, graphics, software, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, or other intellectual property right of any person;
E. Create a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication;
F. Export, re-export, or permit downloading of any message or content in violation of any export or import law, regulation, or restriction of the United States and its agencies or authorities, or without all required approvals, licenses, or exemptions;
G. Interfere, disrupt, or attempt to gain unauthorized access to other accounts on the Service or any other computer network;
H. Disseminate, store, or transmit viruses, Trojan horses, or any other malicious code or program; or
I. Engage in any other activity deemed by PCG to be in conflict with the spirit or intent of this Agreement.
Violation of any of these provisions is cause for PCG to suspend and/or terminate User’s access to the Service immediately and without notice.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days’ prior notice to PCG. PCG reserves the right, in its sole direction and without prior notice, at any time and for any reason to:
A. Remove or disable access to all or any portion of the Service;
B. Suspend User’s access to or use of all or any portion of the Service; and
C. Terminate this Agreement.
8. Disclaimer of Warranties
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT USER’S SOLE RISK. PCG DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE SERVICE WILL BE CORRECTED, OR THAT THE SERVICE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, NOR DOES PCG MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. USER ACKNOWLEDGES THAT PCG DOES NOT CONTROL THE ACTIONS OF OR CONTENT SUBMITTED BY OTHER USERS OR THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING, BUT NOT LIMITED, TO THE INTERNET, AND THAT SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PCG MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OR PERFORMANCE, IN RELATION TO THE SERVICE.
THE ADVICE, RECOMMENDATIONS, INFORMATION, AND CONCLUSIONS POSTED OR EMAILED BY OTHER MEMBERS OF THE SERVICE ARE NOT IN ANY WAY VETTED, APPROVED OR ENDORSED BY PCG, AND USER’S USE OF SUCH INFORMATION IS AT USER’S OWN RISK.
9. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL PCG BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF PCG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THIS SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. IN NO EVENT SHALL PCG’S TOTAL LIABILITY FOR DAMAGES EXCEED $500. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER TO THE EXTENT PROHIBITED OR LIMITED BY APPLICABLE LAW. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
User agrees to indemnify, hold harmless, and defend PCG, its shareholders, directors, officers, employees, and agents from and against any action, cause, claim, damage, debt, demand, or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to:
A. This Agreement;
B. User’s use of the Service or the Content, including any data, work, and communications transmitted or received by User; and
C. Any unacceptable use of the Service or the Content, including, without limitation, any statement, data, or content made, transmitted, or republished by User which is prohibited as unacceptable pursuant to Section 5 above.
11. Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any User Content infringes upon your copyright, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) (see 17 U.S.C. 512(c)(3) for further information) by providing our Copyright Agent (listed below) with the following information:
i. An electronic or physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. A description of the copyrighted work claimed to have been infringed or if multiple copyrighted works are covered by a notification, a representative list of such works at our Service;
iii. A description of the location on the Service of the allegedly infringing material(s);
iv. Your address, telephone number, and email address;
v. A written statement that you have a good faith belief that use of the material(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. A written statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
B. PCG Copyright Agent
PCG’s designated Copyright Agent for notice of claims of infringement related to the Service is:
Public Consulting Group, Inc.
148 State Street, 10th Floor
Boston, MA 02109
Attention: EducatorEd Copyright Agent
Only notices of alleged copyright infringement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to PCG customer service at onlinePL@pcgus.com. You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid.
C. Counter Notification
If you believe that any User Content of yours that was removed is not infringing, or that you have the appropriate rights from the copyright owner or third party, or pursuant to the law, to post and use the material in your User Content, you may send a counter notification containing the following information to the Copyright Agent:
i. Your physical or electronic signature
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
ii. A statement (under penalty of perjury) that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the material; and
iv. Your name, address, telephone number, and e-mail address, along with a statement that you consent to the jurisdiction of the federal court in Boston, Massachusetts and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
D. Counter Notification Process.
If a counter notification is received by the Copyright Agent, PCG may send a copy of such counter notification to the original notifying party. The original notifying party shall have ten (10) business days to file an action for copyright infringement and seek a court order against the content provider or user posting such material. If no such infringement action is filed within such 10 business days, PCG may, in its sole discretion, reinstate the removed material or cease disabling such material.
In accordance with the DMCA and other applicable law, PCG may, in appropriate circumstances, terminate access, at PCG’s sole discretion, of any User that PCG finds to be a repeat infringer of others’ copyrights. PCG may also, in its sole discretion, limit or fully terminate access to the Service of any user infringing the intellectual property rights of others, regardless of whether such User is a repeat offender or not.
For the avoidance of doubt, PCG shall not recognize copyright claims filed by individuals on behalf of individuals or organizations with which they have no affiliation
User may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of PCG. Any attempt by User to assign his or her rights or obligations under this Agreement in breach of this Section 11(A) shall be void and of no effect. PCG may assign its rights or delegate its duties under this Agreement at any time without notice to User or any third party.
B. Governing Law
This Agreement and the legal relationship between the Parties shall be governed by and constructed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles.
C. Construction and Headings
The Parties agree that this Agreement shall not be construed in favor of or against either Party by reason of authorship. The headings to the sections of this Agreement are included for convenience only and shall not affect the interpretation of this Agreement.
D. No Waiver
The waiver by either Party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of this Agreement.
The invalidity or unenforceability of any provision contained herein shall not affect the validity of any other provisions of this Agreement, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted, or, to the extent permitted by applicable law, such invalid or unenforceable paragraph shall be replaced with another paragraph as similar in terms as may be possible and as may be legal, valid, and enforceable.
F. Force Majeure
PCG shall not be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, terrorism, fire, flood, strikes, war, epidemics, pandemics, shortage of power, or other acts or causes reasonably beyond the control of PCG. PCG agrees to give User notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable.
G. Independent Contractors.
PCG, User, and their respective personnel, are and shall be independent contractors and none by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of any of the others.
PCG shall have the right, at any time and without notice, to add or modify the terms of the Agreement by posting such additions or modifications to the Service. User’s access to or use of the Service after the date such amended terms are effective shall be deemed to constitute acceptance of such terms.