K-12 Terms of Service Agreement

ALEKS Corporation, a Delaware corporation ("ALEKS"), offers the ALEKS System (as defined in Section 12 of this Agreement) an online assessment and learning system that allows a specified number of K-12 students in a school, class or school district as a subscriber (the "Subscriber"), to use the ALEKS System for a period of time specified in the Subscriber's purchase order -- only in accordance with the provisions of this K-12 Terms of Service Agreement (the right of one student to use ALEKS for such time period being herein referred to as an "ALEKS Unit").

The ALEKS System is made available for use by K-12 students through their schools only in accordance with this K-12 Terms of Service Agreement.

ALEKS hereby accepts the terms and conditions of any purchase order executed and delivered by Subscriber to ALEKS for any ALEKS Units (each, a "Purchase Order"). The provisions of any such Purchase Order are hereby merged into this K-12 Terms of Service Agreement; provided, however, that, notwithstanding any provision of any Purchase Order or any other instrument, or representation or statement by any person or entity whatsoever, to the extent any provision of this K-12 Terms of Service Agreement is inconsistent with any provision of any Purchase Order, the provisions of this K-12 Terms of Service Agreement shall prevail. If the Subscriber does not agree with and accept each and every provision of this K-12 Terms of Service Agreement, the Subscriber must promptly cease permitting its students and employees to use the ALEKS System, and request any applicable refund at http://support.aleks.com/refund or 714.245.7191 Ext. 201.

By the occurrence of any one or more of the following,

(i)

an employee or agent of the Subscriber clicking and agreeing to this Agreement, or

(ii)

an employee or agent of Subscriber signing and returning this K-12 Terms of Service Agreement in written form, or

(iii)

Subscriber's permitting its students to access and use the ALEKS System on the K-12 Site,

Subscriber confirms its agreement with, and acceptance of, the provisions of this K-12 Terms of Service Agreement. In consideration of this Subscription Agreement and payments made by Subscriber to ALEKS hereunder, Subscriber's students shall be permitted to use the ALEKS System to the extent of the ALEKS Units.

1. Description of the ALEKS System

During the term of this K-12 Terms of Service Agreement, Subscriber will have access to the ALEKS System, and the non-exclusive right to use the ALEKS System, solely for the purposes of assessing "Students" (as defined in Section 12 of this Agreement), allowing Students to learn academic subjects via use of the ALEKS "learning mode," obtaining the results of such assessments and learning, and other information, from the ALEKS teacher and administrator modules (the "Management Modules"), and communicating with ALEKS. ALEKS will provide online, e-mail and telephone support for the ALEKS System in accordance with its standard practices. ALEKS may modify the ALEKS System, and ALEKS may modify the services provided in connection with the ALEKS System in the normal course of their businesses, and will endeavor to inform Subscriber in advance of significant changes.

2. Proprietary Rights

Subscriber acknowledges and agrees (i) that Subscriber has, and under this Agreement obtains, no proprietary or ownership right, or interest of any kind in or to the ALEKS System, the ALEKS website (http://www.aleks.com, or any other URL address that ALEKS may use in the future; the "ALEKS Website"), or in any material contained, included in or accessible on the ALEKS Website (including without limitation, problems, explanations, on-line dictionary items, or in any text, graphics, music, sound recordings, audio-visual materials, software, programs, photographs, or any other material of any kind or in any media, contained, included in or accessible on the ALEKS Website or through the ALEKS System; all of the foregoing being collectively known as "ALEKS Materials"), regardless of whether the ALEKS System or any of the ALEKS Materials or the ALEKS Website are owned by, licensed to, or controlled by ALEKS. Subscriber further acknowledges and agrees that, as between ALEKS and Subscriber, ALEKS is the owner of all rights in and to the ALEKS System, the ALEKS Materials, and the ALEKS Website (all of the foregoing being collectively known as "ALEKS Online Educational Facilities"), and that Subscriber has been notified and understands that ALEKS Online Educational Facilities are protected by United States, Canadian and other applicable laws and international treaties protecting intellectual property. Any rights not expressly granted herein are reserved to ALEKS and its licensors.

3. Security

(a) Subscriber agrees to access and use the ALEKS Online Educational Facilities solely for the educational purposes involving student assessment and learning. Subscriber acknowledges that Subscriber alone is responsible for the selection of which Students will have access to ALEKS Online Educational Facilities and for Subscriber's handling of "Personal Information" (as defined in Section 12 of this Agreement) concerning the Students. As between ALEKS and Subscriber, all information concerning the Subscriber and Personal Information concerning Students ("Subscriber Information") shall belong to the Subscriber. ALEKS claims no ownership or other interest in Subscriber Information. ALEKS has access to Personal Information only in order to make available ALEKS online programs solely for the benefit of Subscriber and its Students.

(b) Subscriber will be responsible for the inputting of all needed information and authorizations into the ALEKS System. ALEKS will provide reasonable assistance to subscriber by responding to questions and giving direction as appropriate or as requested by Subscriber. Subscriber accepts sole responsibility for entering all needed information and authorizations into the ALEKS System accurately and in a timely manner to accommodate Subscriber's schedules. Subscriber acknowledges that without accurate and complete entry of information available to Subscriber, and timely authorizations by Subscriber, in the ALEKS System, the results of ALEKS's services may not be as intended. Subscriber acknowledges and agrees that all information input by any employee or student of Subscriber, and any authorization input by any employee or agent of Subscriber, shall be deemed to have been transmitted to ALEKS by and under the authority of the Subscriber to carry out its educational responsibilities under law.

(c) Subscriber agrees that access to the ALEKS System will be limited and password protected as follows: ALEKS will assign the Subscriber a master user "Class Code." Subscriber will limit access to the ALEKS Management Modules to employees of Subscriber who need such access in order for the Subscriber to effectively use ALEKS to assist in educating Subscriber's students. Subscriber shall be solely responsible for the choice of persons to whom such access is provided, and for any and all consequences of providing such access.

4. Restrictions on Use of ALEKS Educational Facilities

(a) Subscriber agrees that it will not disclose, make available, loan, transfer, rent, sell or use any ALEKS Online Educational Facilities or provide or give access thereto except as expressly permitted by the provisions of this K-12 Terms of Service Agreement. In particular (and not in limitation of the preceding sentence), Subscriber agrees and acknowledges that (i) each ALEKS unit represents the right of one individual student to use the ALEKS Educational Facilities for a specified period of time, and (ii) ALEKS accounts are never transferable between students.  Subscriber agrees that no individual ALEKS account or unit will be used by more than one individual student, either simultaneously or in sequence. Subscriber agrees not to permit any ALEKS student account to be used or made available to more than one student.

(b) Subscriber agrees not to adapt, modify, change, translate, merge, reverse engineer, reproduce, print out code or create Derivative Works (as defined in Section 12 of this Agreement) from any of the ALEKS Online Educational Facilities except for printing (but not copying) of individual ALEKS Worksheets. Subscriber also agrees not to share, loan, rent, lease or otherwise transfer anything included in ALEKS Online Educational Facilities and not to copy or permit copying or publication thereof. Nor shall anyone authorized by Subscriber be permitted to access or use the ALEKS System in a manner that disrupts the normal use of the ALEKS Website.

(c) Subscriber, Students or others who make entries on the K-12 Site are solely responsible for the content and materials contained in such entries. ALEKS has no responsibility for any such information or for any messages posted thereon by others, even if accessed through the ALEKS Website. Subscriber agrees not to post itself and shall implement reasonable procedures to prevent Students or others from posting and transmitting text, images, sound, data or other information that is unlawful, threatening, abusive, defamatory, deceptive, fraudulent, or tortious, or which invades the right of privacy of any person, or which is vulgar or describes, depicts or contains accounts of sexual acts; or which can be perceived as intended to harasses, degrade or intimidate a person or a group of people on the basis of race, age, religion, sexual preference, gender, religion or national origin on any other legally protected or unprotected class; or intentionally impersonates or suggests its source is another person, entity or group; or which infringes any copyright, trademark, service mark, patent, trade secret or other proprietary, contractual or personal right; or which constitutes advertising or advertises or solicits, or constitutes "Spamming;" or which contains any computer virus or files that can disrupt, damage or inhibit the functioning of hardware or software or can obtain unauthorized access to data or to third party information.

(d) ALEKS retains the right, which it may elect to exercise or not exercise, in its sole discretion, to review, edit or delete from the ALEKS Website, with or without prior notice, and without liability to Subscriber or any Student or other third-party, all material or information that ALEKS deems its sole discretion to be illegal, offensive or otherwise inappropriate.

(e) ALEKS assumes no responsibility to Subscriber for any material or content outside of the ALEKS Website, even if accessed through links on the ALEKS Website.

5. Collection of Personal Information

(a) ALEKS enters into this K-12 Terms of Service Agreement on the understanding that the Subscriber is familiar with and agrees to be responsible for compliance with all applicable  laws, rules, and regulations (collectively, "Applicable Law") as well as any policy, procedure or practice of Subscriber or any administrative entity having jurisdiction over Subscriber ("Administrative Policy") concerning the collection, use and disclosure of Personal Information about Students accessing the ALEKS System. Subscriber represents and warrants that it has obtained any and all parental consents necessary under Applicable Law or Administrative Policy for Subscriber’s Students to use ALEKS Online Educational Facilities. Subscriber hereby authorizes ALEKS to collect, use, and disclose to Subscriber’s employees, Personal Information as necessary to perform its obligations under this K-12 Terms of Service Agreement.

It is understood that the Subscriber assumes sole responsibility for:

(i)

providing notice to the extent required under Applicable Law or Administrative Policy in connection with the collection, use and/or disclosure of Personal Information from Students;

(ii)

obtaining any parental consent required under Applicable Law or Administrative Policy in connection with the collection, use and/or disclosure of Personally Identifiable Information obtained from Students;

(iii)

providing a reasonable means for parents to review Personal Information provided by Students to the extent required by Applicable Law or Administrative Policy; and

(iv)

establishing and maintaining reasonable procedures to protect the confidentiality, security and integrity of any Personal Information accessed via the ALEKS Management Modules.

ALEKS shall be entitled to presume that Subscriber’s authorization of ALEKS in this Agreement to collect and use Personal Information is based upon Subscriber’s having fulfilled its obligations under this Section 5, including, without limitation, Subscriber’s having obtained the consent of all Students’ parents or legal guardians to the collection, use and disclosure of Personal Information of Students in accordance with this Agreement.

(b) Subscriber acknowledges that ALEKS maintains reasonable procedures to comply with Applicable Law, and to protect the confidentiality, security and integrity of Personal Information of Students received by ALEKS in providing educational services pursuant to this K-12 Terms of Service Agreement.

(c) Subscriber acknowledges, and ALEKS agrees, that ALEKS uses Personal Information collected on the ALEKS System solely for (i) purposes of performing its obligations under this K-12 Terms of Service Agreement and (ii), for research purposes in connection with the development and improvement of ALEKS educational products and services ("Research Purposes"), and that Personal Information will be used by ALEKS for Research purposes only in the aggregate and so that the privacy of the individual's Personal Information will be maintained.  

(d) Subscriber acknowledges that it has read the ALEKS Privacy Statement for K-12 Schools and that it accepts and agrees to each and every provision of such Statement.

6. Fees and Accounting

(a) The Subscriber agrees to pay Subscription fees in the amount stated in any and all Purchase Orders (the "Subscription Fees") for the ALEKS Units.

(b) Subscriber will be invoiced from time-to-time for the amounts due under this Subscription Agreement. Invoices will reference the Purchase Order and contain sufficient information so that Subscriber will be informed of the basis for the charges. Invoice(s) are payable within 30 days after delivered. If Subscriber fails to pay an invoice with this period, past due amounts will accrue interest at the maximum rate permitted by Applicable Law, from the due date until paid. Subscriber also agrees to pay all out-of-pocket costs of collection.

(c) Subscriber will be responsible for the payment of all applicable taxes and governmental charges of all types, however denominated, that arise from the fees charged hereunder, including all sales, use, value added, and other taxes (except for taxes based upon ALEKS's net income), and all fees, related penalties, interest, and collection charges. Subscriber will furnish an exemption certificate, if exempt.

(d) For purposes of determining that the number of Students authorized by Subscriber to access the ALEKS System under this Subscription Agreement has not exceeded the maximum number authorized, the parties agree that all Students who are granted access by a Login Name approved by an employee or agent of Subscriber (including duplicate Login Names approved by Subscriber's employees in error), whether simultaneously or at different times, will be counted for invoicing purposes. If Subscriber desires to increase the number of ALEKS Units authorized by Subscriber, Subscriber agrees to execute and deliver an additional Purchase Order in advance. If more Students than the number of ALEKS Units are granted access, Subscriber agrees to purchase these actual numbers of ALEKS Units used by Subscriber at ALEKS's then-current rates.

(e) If Subscriber breaches any of its obligations hereunder, including the obligation to pay fees hereunder, ALEKS may suspend the ALEKS System to Students or withhold access to information available to Subscriber in the Management Modules until paid in full, without limiting the other remedies that may be available to ALEKS at law or in equity. The obligation to pay any unpaid amounts owing to ALEKS under this Agreement shall survive any termination of this Agreement or cessation of service hereunder.

7. Availability of Service

Subject to the provisions of this Agreement, ALEKS will provide the ALEKS System as generally described on the ALEKS Website and the specifications relating to the services, their availability and minimum hardware and software requirements. Availability of the ALEKS System will include scheduled maintenance during which the ALEKS Website will not be available for use and also include unscheduled maintenance and other interruptions of unanticipated extent or duration that are beyond ALEKS's reasonable control. ALEKS will use commercially reasonable efforts to avoid downtime and interruptions but no representations or warranties are made with respect to service levels.

8. Warranties and Indemnities

(a) Subscriber represents and warrants that (i) Subscriber has the right, power and authority to enter into and perform this K-12 Terms of Service Agreement, and (ii) that Subscriber has or will obtain all necessary consents from the parents or guardians of Students that may be required in order to comply with all Applicable Law and Administrative Policy with regard to the collection, transmission and use of Personal Information on the Internet, and (iii) any person who signs this K-12 Terms of Service Agreement in written form or who clicks the "I accept" button pertaining to this K-12 Terms of Service Agreement has been duly authorized and empowered to do so by Subscriber; and (iv) that Subscriber will grant access to the ALEKS Online Educational Facilities only to Students and others as authorized in this K-12 Terms of Service Agreement.

(b) Subscriber hereby requests that ALEKS provide Subscriber with access to one or more lists (“rosters”) of Subscriber’s students who use ALEKS.  Subscriber hereby specifically further requests that ALEKS individual student log-in codes (“ID’s”) and ALEKS passwords be included in such roster(s).  Subscriber represents, warrants and agrees that (i) such provision of student ID’s and passwords by ALEKS to Subscriber is in compliance with all Applicable Law and Administrative Policy and (ii) Subscriber is solely responsible for compliance with all Applicable Law and Administrative Policy in connection with ALEKS’s provision of any student ID’s or passwords to Subscriber, Subscriber’s obtaining possession of any student ID’s or passwords, and any and all action, or inaction, of Subscriber of any kind whatsoever that is enabled or facilitated by Subscriber’s possession of such student ID’s or passwords.

(c) Subscriber agrees to indemnify and hold ALEKS, and its officers, directors and employees, harmless from any claims, demands, causes of actions, judgments, damages, liabilities, costs and expenses (including reasonable attorney fees) arising from or relating to Subscriber's use of the ALEKS Online Educational Facilities, or the breach of any representation or warranty of Subscriber, or the failure of Subscriber to comply with this K-12 Terms of Service Agreement.

(d) Subject to the terms of this K-12 Terms of Service Agreement, ALEKS shall, at its sole cost, indemnify and hold harmless, Subscriber, its, affiliates, officers, directors and employees, from and against any action claiming that any of the ALEKS Online Educational Facilities infringes a copyright, trademark, patent or other proprietary right when used as authorized by this K-12 Terms of Service Agreement.

(e) With respect to any claim which may form the basis of an indemnity under this Section 8, the party seeking indemnification shall give prompt notice of such claim to the other party, as well as the opportunity to defend, compromise, or settle such claim with counsel selected by such other party, and shall fully cooperate in the course thereof; provided, however, that the indemnifying party shall not enter into any compromise or settlement that shall have the effect of creating any liability or obligation (whether legal or equitable) on the part of the indemnified party without the indemnified party's prior written consent, which shall not unreasonably be withheld, and no such compromise or settlement is hereby authorized unless the indemnified party obtains a complete release under said compromise or settlement.

(f) ALEKS's intellectual property indemnity in Section 8(c) is subject to the following: If ALEKS has reason to believe that any portion of the ALEKS Online Educational Facilities is likely to become the subject of an infringement claim, ALEKS may, at its sole option and expense exercise any or all of the following rights or remedies: (i) procure for Subscriber the right to exercise the rights granted hereunder, (ii) replace or modify such portion so that it becomes non-infringing, or (iii) terminate the Subscriber's use of the infringing portion upon written notice to Subscriber. The foregoing notwithstanding, ALEKS will not be obligated under this Section 8 or otherwise for an infringement claim based upon (w) any unauthorized use by the Subscriber or any one gaining access through the Subscriber, (x) any use of the ALEKS Online Educational Facilities in combination with other products, software or equipment not designated by ALEKS, or, (y) any modification of the ALEKS Online Educational Facilities made by any person other that ALEKS or its designee, or (z) if Subscriber's account is in arrears or Subscriber is in breach of this Agreement as of the time of the claim.

(g) This Section 8 states the entire obligation and liability of each party for indemnification and Subscriber's sole remedy for infringement claims and actions.

9. Term and Termination

(a) This Subscription Agreement shall commence as of the date of Subscriber's first purchase order, and shall continue until the last ALEKS Unit expires, unless otherwise extended or terminated as provided herein.

(b) This Subscription Agreement may be renewed for additional term(s) at the then-current ALEKS Subscription rates, if Subscriber issues additional purchase order(s) for one or more additional ALEKS Units.

(c) A party may terminate this Subscription Agreement for breach by notifying the other party in writing of the nature of the breach and by permitting that party not less than thirty (30) days to cure said breach. If ALEKS does not cure a breach within said period, Subscriber may terminate this Agreement and may be entitled to receive a prorated refund based upon actual use of the Subscription Fee amounts paid by Subscriber. If Subscriber does not cure within said notice period, ALEKS may terminate this Agreement by notifying Subscriber or by denying access to the ALEKS System, or both. Upon termination, each party shall have all available remedies at law or in equity.

(d) Upon the lapse or termination of this K-12 Terms of Service Agreement for any reason: (i) all Subscriber's rights and any Student's right to access and use the ALEKS System shall cease to exist and Subscriber and Student will cease using and will be denied access to the ALEKS System, and (ii) Subscriber will immediately pay all fees or other moneys due.

10. Disclaimers

Subscriber expressly acknowledges and agrees that it is solely responsible for the selection and use of the ALEKS Educational Facilities to serve its needs. The ALEKS Educational Facilities are provided on an "AS IS" and "AS AVAILABLE" basis without warranties or indemnities, except as expressly stated in this Agreement. ALEKS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES AND INDEMNITIES OF MERCHANTANTABILITY, FITNESS, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ALEKS DOES NOT MAKE ANY WARRANTIES THAT ANY OF THE ALEKS EDUCATIONAL FACILITIES WILL MEET SUBSCRIBER'S REQUIREMENTS, BE SECURE OR ERROR FREE, TIMELY, AVAILABLE OR UNINTERRUPTED, OR THAT RESULTS OR INFORMATION OBTAINED FROM SUBCRIBER'S USE WILL BE USEFUL, OR THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED. ANY INFORMATION AVAILABLE TO OR RECEIVED BY SUBSCRIBER FROM THE ALEKS EDUCATIONAL FACILITIES OR DOWNLOADED FROM THE ALEKS SYSTEM IS USED IN SUBSCRIBER'S SOLE DISCRETION AND ANY ADVICE OR INFORMATION RECEIVED FROM ALEKS, WHETHER WRITTEN OR ORAL, OR THROUGH USE OF THE ALEKS SYSTEM SHALL NOT CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS K-12 TERMS OF SERVICE AGREEMENT. SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OF DATA OR INFORMATION OR ANY DAMAGE TO SUBCRIBER'S HARDWARE OR SOFTWARE FROM USE OF THE ALEKS SYSTEM.

SOME JURISDICTIONS MAY NOT ALLOW DISCLAIMER OF WARRANTIES. IF ANY WARRANTY CANNOT LEGALLY BE DISCLAIMED, THE PARTIES AGREE THAT THE DURATION OF SUCH WARRANTY SHALL BE LIMITED TO A PERIOD OF NINETY (90) DAYS AFTER USE OF THE ALEKS EDUCATIONAL FACILITIES BY SUBSCRIBER. SOME JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS. IF ANY SUCH LIMITATION ON DURATION OF WARRANTIES CANNOT LEGALLY BE ENFORCED, THEN THE PROVISIONS OF THIS SECTION 10 SHALL BE APPLIED SO AS TO GIVE SUCH LIMITATIONS THE MAXIMUM AFFECT POSSIBLE UNDER APPLICABLE LAW.

11. LIMITATION ON LIABILITY

(a) SUBSCRIBER ACKNOWLEDGES AND AGREES THAT NEITHER ALEKS NOR ANY OTHERS INVOLVED IN THE PREPARATION OR DELIVERY OF ANY OF THE ALEKS EDUCATIONAL FACILITIES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST SAVINGS, LOST PROFITS, GOODWILL, LOSS OF USE, LOSS OF DATA, LOSS OF RECORDS, LOSS OF TIME, INCLUDING TRAINING TIME, OR OTHER TANGIBLE OR INTANGIBLE LOSSES RELATED TO OR ARISING FROM THIS TERMS OF SERVICE AGREEMENT OR ANY OF THE ALEKS EDUCATIONAL FACILITIES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH OCCURANCE OR CLAIM, EXCEPT AS EXPRESSLY STATED IN SECTION 8(c), INCLUDING ANY CLAIM BY SUBSCRIBER OR A THIRD PARTY CLAIM.

(b) THE TOTAL LIABILITY OF ALEKS AND ANY OTHERS INVOLVED IN THE PREPARATION AND DELIVERY OF THE ALEKS EDUCATIONAL FACILITIES SHALL NOT EXCEED THE AMOUNT OF FEES PAID HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEEDING THE DATE THAT THE FIRST CLAIM ARISES. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE FEES PAYABLE HEREUNDER ACCURATELY ALLOCATE THE RISK SET FORTH FOR EACH PARTY IN ENTERING THIS TERMS OF SERVICE AGREEMENT AND THAT ALEKS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ALEKS's LIABILITY STATED HEREIN.

(C) SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR EXEMPLARY DAMAGES, OR THE LIMITATION OF LIABILITY TO SPECIFIED AMOUNTS; IF ANY SUCH EXCLUSION OR LIMITATION CANNOT LEGALLY BE ENFORCED, THEN THE PROVISIONS OF THIS SECTION 11 SHALL BE APPLIED SO AS TO GIVE SUCH EXCLUSIONS AND LIMITATIONS THE MAXIMUM AFFECT POSSIBLE UNDER APPLICABLE LAW.  

12. Definitions

Defined terms contained in this K-12 Terms of Service Agreement begin with initial capitals and are defined by the context where they first appear, or as stated below.

(a) A "Class Code" shall mean numbers or symbols within the ALEKS System, designated by ALEKS for use by Subscriber to gain access to the ALEKS System. A "Login name" is a designated identification for a Student to use to gain access to the ALEKS System.

(b) "ALEKS System" shall mean the ALEKS online assessment and learning system accessible via the world-wide-web on the ALEKS Website, as it currently exists or may be modified in the future, including without limitation, web-enabled servers for deployment on the Internet, all programming, documentation, processes, algorithms, designs, models, applications, interfaces, files, libraries, graphics, multimedia assets, and other computer related processes, technologies, and methodologies embodied therein or accessed thereby.

(c) "ALEKS Online Educational Facilities" shall mean the ALEKS System, the ALEKS Website, and any material contained, included in or accessible on the ALEKS Website (including without limitation, problems, explanations, on-line dictionary items, or any text, graphics, music, sound recordings, audio-visual materials, software, programs, photographs, or any other material of any kind or in any media, contained, included in, or accessible on the ALEKS Website or through the ALEKS System.

(d) "ALEKS Website" shall mean http://www.aleks.com, or any other web site location, home and all related pages, owned, controlled or operated by ALEKS with US-based domain registrations (e.g., .com, .net, .org, .biz or .cc) that is designated by ALEKS as its world-wide-web site for use by US and/or Canadian K-12 students using ALEKS through their K-12 school and made available to a Subscriber to obtain access to and use of the ALEKS System.

(e) "Derivative Work," shall have the meaning as defined in the U.S. Copyright Act, Title 17 of the U.S. Code, as amended.

(f) "Intellectual Property Rights" shall mean the worldwide intangible legal rights or interests evidenced by or embodied in (i) any idea, design, concept, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, patent applications, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, industrial designs, registration or moral rights recognized by law; (iii) any trademarks, trade names, trade dress and associated goodwill; and (iv) any other proprietary technology or material in which similar rights exist.

(g) "Personal Information" shall mean all personal information of any kind pertaining to K-12 students of any age, including without limitation "personally identifiable information" as defined in the United States Federal "Children's Online Privacy Protection Act of 1998" (US Code, as amended). Personally identifiable information as defined in such Act means individually identifiable information about an individual collected online, including:

(1)

a first and last name;

(2)

a home or other physical address including street name and name of a city or town;

(3)

an e-mail address;

(4)

a telephone number;

(5)

a Social Security number;

(6)

any other identifier that the (FTC) Commission determines permits the physical or online contacting of a specific individual; or

(7)

information concerning the child or the parents of that child that the website collects online from the child and combines with an identifier described in this paragraph.

(h) "Student" shall mean any person who obtains access to the ALEKS Website through a "Login Name" authorized by an employee or agent of Subscriber through the ALEKS Management Modules under the Subscriber's "Class Code," whether or not that person is, in fact, a student enrolled at Subscriber's facility, or a person acting in some other capacity such as a teacher, teacher's aide, school administrator, a test administrator, and independent school consultant, curriculum coordinator, or any other person who obtains and uses such an authorized Login Name whether rightfully or otherwise obtained.

13. General

(a) Independent Contractor. The parties acknowledge and agree that they are independent contractors and shall have no authority to act as an agent of the other; nor shall a party bind or purport to bind another party to any commitment, obligation, or liability to any third party or to make any representations or warranties on behalf of the other. This Agreement does not create a partnership or a joint venture relationship between the parties.

(b) Assignment. Subscriber shall not assign this Agreement or its rights hereunder or assign or delegate its obligations hereunder without the prior written consent of ALEKS and any such attempt shall be void. ALEKS may assign this Agreement in whole or in part upon written notice to Subscriber. Such assignment shall be subject to the party to whom this Agreement is assigned assuming the obligations hereof.

(c) Compliance with Law. Subscriber shall, at its own expense, comply will all applicable laws, regulations, rules, ordinances, orders and administrative requirements regarding its activities related to this K-12 Terms of Service Agreement and Subscriber's use of the ALEKS Educational Facilities, and in obtaining all necessary parental or guardian consents for Student access and use of the ALEKS Educational Facilities.

(d) Severability and Headings If any provision of this K-12 Terms of Service Agreement is held to be invalid or unenforceable, regardless of reason, the remaining provisions will remain in force and not be invalidated or impaired in any way. The parties agree to replace the invalid or unenforceable provision with a lawful provision that approximates the party's intent and relative economics. Headings are for convenience of reference only and do not construe the Section it heads.

(e) Notices. Notices concerning day-to-day administrative and performance matters are to be sent in the case of ALEKS by going to http://support.aleks.com, and in the case of Subscriber to the employee or agent of Subscriber that is identified within the ALEKS System as supervising the matter in question. Notices of a substantive or legal nature required by this Agreement for either party are to be in writing and shall be forwarded as follows:

If to Subscriber: To the Subscriber's Contact Person identified on Subscriber's Purchase Order

If to ALEKS:  by going to http://support.aleks.com: Attention: K-12 Customer Contract Administration

Changes in address by either party shall be made by notice to the other party as above provided. Notices required by this Agreement shall be deemed received (a) upon delivery, when delivered in person or by commercially receipted courier, (b) two business days after the date sent by email, (c) one day after the date sent by facsimile, if confirmed by written courier delivery or U.S. Postal Service, (c) or within five (5) days by deposit with the U.S. Postal Service by registered or certified mail.

(f) U.S. Government Subscribers. If a Subscriber is a unit or agency of the United States Government, the following provision applies. Any software or materials provided hereunder are comprised of "commercial computer software" and "commercial computer software documentation as such terms are used in 48 C.F.R. 12.212 SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set froth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48. C.F.R 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995).

(g) Force Majeure: Neither party shall be liable to the other for any failure or delay caused by events beyond its reasonable control, including, without limitation, acts of God, sabotage, accidents, failures or delays in transportation or communication, labor disputes, shortages of labor, fuel, raw materials or equipment, or other matters. Each party shall promptly inform the other of any such event. Should the event prevent performance of this K-12 Terms of Service Agreement for more than ninety (90) days, the other party may terminate this K-12 Terms of Service Agreement.

(h) Waiver. No waiver of any provision of this Agreement will be valid against ALEKS unless in writing and signed by an authorized officer of ALEKS. Any failure of ALEKS to insist upon or enforce strict performance of the terms and conditions of the Subscription Agreement or to exercise ALEKS's rights hereunder shall not be construed as a waiver or abrogation of ALEKS's right to insist upon performance of the same provisions in other instances nor serve as a basis for liability to Subscriber or anyone else.

(i) Entire Agreement. This Agreement, incorporating the Purchase Order(s) as and to the extent set forth in the third paragraph of this Agreement, constitutes the entire understanding between the parties, and all prior agreements, representations, memoranda, correspondence or proposals concerning the understanding between the parties regarding the subject matter are merged herein and superseded hereby. Only an authorized officer of ALEKS may amend this Agreement by a written instrument executed by such officer, and no one else is authorized to do so by any means.

(j) Applicable Law and Forum and Dispute Resolution. This Agreement will in all respects be interpreted and construed in accordance with and governed by the laws of the State of California, regardless of the place of its execution or performance and without regard to rules regarding the conflict of laws. The parties agree that any disputes, arising out of or related to this Agreement will, after a good faith effort to resolve such dispute between the parties, first be subject to mediation in Orange County, California; provided that nothing contained herein shall prohibit a party from injunctive relief to protect its intellectual property or other property right.

(k) Survival. The rights and obligations of Sections 2, 4(a) and (c), 5(a) and (c), 6(c), 8, 10, 11, 13(e), (j) and (k), and those other provisions which by their express terms or by their nature survive, will so survive and continue in full force and effect after any expiration or termination of this Agreement and will bind the parties and their successors and assigns in accordance with their terms.

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