Product Terms of Service
Effective Date: July 11, 2022
This Agreement governs the use of the Services and is a binding contract between School (sometimes referred to as “School,”“you,” or “your”) and Progress Learning, LLC, doing business as Progress Learning, (“Progress Learning”, “we,” “us”, or “our”). This Agreement is distinct from our Website Terms of Service, which governs only the use of our Website.
BY EXECUTING A PURCHASE ORDER FROM A QUOTE THAT REFERENCES THIS AGREEMENT; COMPLETING THE REGISTRATION PROCESS; OR INSTALLING OR USING ANY SERVICES IN ANY WAY, THE SCHOOL AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING THIS AGREEMENT ON BEHALF OF A SCHOOL, SCHOOL DISTRICT, CORPORATION, ORGANIZATION, OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY ARE AT LEAST EIGHTEEN (18) YEARS OLD AND HAVE THE AUTHORITY, THE RIGHT, AND THE CAPACITY TO LEGALLY BIND SUCH SCHOOL, SCHOOL DISTRICT, CORPORATION, ORGANIZATION OR OTHER LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “SCHOOL” SHALL REFER TO EACH SUCH ENTITY AND ITS AFFILIATES.
We may make non-material modifications to this Agreement or changes that expand our obligations, reduce your obligations, or introduce a new product offering immediately without notice to you. Otherwise, we will only modify or replace this Agreement, after providing notice to you. You are responsible for regularly reviewing your Account and our Website for any changes to the Agreement.
You are free to reject this Agreement, but if you do not agree with all of the provisions of this Agreement, then you may not use any of our Services in any way.
Progress Learning operates an online resource for teachers to help students master state learning standards. The following terms of service (“Terms of Service”) provide for terms that are common to this Agreement.
2.1 General. All services provided by Progress Learning under this Agreement (“Services”), including the Software Services, will be provided to Customer according to these Terms of Service. During the Term, Progress Learning shall provide Customer a user name, a teacher password and a student password to enable teachers employed by Customer (“Teachers”) and students enrolled in Customer’s classes (“Students”) to access the Software Services.
2.2 Software Services. Progress Learning will provide Customer and its authorized Teachers and Students (“Authorized Users”), with access to the software products and related services and content provided by Progress Learning via a web browser (“Software Services”). During the Term and subject to Customer’s compliance with this Agreement, Progress Learning grants Customer the non-exclusive, nontransferable, non-assignable, and limited right to allow Authorized Users to remotely access the Software Services in accordance with the terms of this Agreement solely for the benefit of Customer and the Authorized Users in the ordinary course of Customer’s operations.
2.3 Service Delivery. Progress Learning may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services.2.4 Restrictions. Customer shall not lease, license, sell, sublicense or otherwise transfer its access to or use of the Software Services. The Software Services may only be accessed or used by Customer and Authorized Users for their own benefit. In addition, Customer shall not modify, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Software Services. Nothing in this Agreement confers upon either party any right to use the other party’s Marks (defined below), except in Progress Learning’s performance of the Services. All use of such Marks by either party will inure to the benefit of the owner of such Marks, use of which will be subject to specifications controlled by the owner.
3. Rights Reserved
All right, title, and interest in and to the Services (including all content contained therein) and all service marks, trademarks, trade names, logos, and any modifications to the foregoing (“Marks”) of Progress Learning, together with all suggestions, contributions, enhancements, improvements, additions, modifications, or derivative works thereto and copies thereof, will remain in possession of Progress Learning. Customer acknowledges that the Software Services in source code, object code and any other form remains Confidential Information of Progress Learning and that the Software Services in any form is not licensed to Customer by this Agreement and will not be provided by Progress Learning. No right or implied license or right of any kind is granted to Customer regarding the Services, including any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer, or possess the Software Services, the documentation thereof, the content contained therein, or other technical material, or any portions thereof.
4. Fee and Payment Terms
4.1 Services Fees. For the Services provided under this Agreement, Customer will pay Progress Learning the fees in the amounts set forth on the quote. Unless otherwise set forth on the quote, applicable fees will be invoiced to Customer annually in advance. Fees are non-cancelable and non-refundable. Except as otherwise may be set forth on the quote, all amounts owed shall be due 30 days from receipt by Customer of an invoice for same. After the Initial Term, and at the beginning of each Renewal Term thereafter, Progress Learning may adjust the fees applicable during the upcoming Renewal Term upon written notice provided at least 60 days prior to the end of the Initial Term or applicable Renewal Term, as the case may be. All fees paid and expenses reimbursed under this Agreement will be in United States currency.
4.2 Taxes. The fees and expenses due to Progress Learning as set forth in this Agreement are net amounts to be received by Progress Learning, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes, or duties incurred by Customer or imposed on Progress Learning in the performance of this Agreement or otherwise due as a result of this Agreement. This section will not apply to taxes based solely on Progress Learning’s income.
4.3 Offset. Fees and expenses due from Customer under this Agreement may not be withheld or offset by Customer against other amounts for any reason.
5. Customer Obligations
5.1 Technical Requirements. Customer must have required equipment, software, and Internet access to be able to use the Software Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Customer’s responsibility. Progress Learning neither represents nor warrants that the Software Services will be accessible through all web browser releases.
5.2 Use of Software Services. Customer shall not, and shall not permit others, in using the Software Services to: (i) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (ii) engage in any conduct that could constitute a criminal offense or give rise to civil liability for Progress Learning; (iii) misrepresent or in any other way falsely identify Customer’s identity or affiliation, including through impersonation or altering any technical information in communications using the Software Services; (iv) transmit or upload any material through the Software Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Progress Learning’s, or any other person’s or entity’s, network, computer system, or other equipment; (v) interfere with or disrupt the Software Services, networks, or servers connected to the Progress Learning systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software Services; (vi) attempt to gain unauthorized access to the Software Services, other Progress Learning customers’ computer systems, or networks using the Software Services through any means; or (vii) interfere with another party’s use of the Software Services. Progress Learning has no obligation to monitor Customer’s use of the Software Services. However, Progress Learning reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. Customer shall be responsible for all acts and omissions of its Authorized Users as if such acts or omissions were its own.
5.3 Compliance with Law. Customer agrees not to use or allow the use of the Software Services for illegal purposes or for the transmission of material that is unlawful, harassing, defamatory (untrue and damaging to others), invasive of another’s privacy, abusive, threatening, or obscene, or that infringes the rights of others. Customer is solely responsible for any and all improper use of the Software Services that occurs as a direct or indirect result of any act or omission of Customer and any Authorized User. Customer will notify Progress Learning immediately of any unauthorized use of the Software Services or any other breach of security that is known or suspected by Customer.
6. Non-Disclosure and Confidentiality
6.1 Disclosure. Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any information that is of value to its owner and is treated as confidential, including trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Receiving Party” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Receiving Party’s employees or agents.
6.2 Requirement of Confidentiality. The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its, and its affiliates’, officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 6; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. Customer acknowledges that the Software Services and documentation are the Confidential Information of Progress Learning. The obligations in this Section 6 shall survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
6.3 Compelled Disclosure. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
6.4 Data Use. Customer agrees that data derived by Progress Learning from Progress Learning’s performance of the Services or input by Customer may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis (“De-identified Data”) may be used by Progress Learning for any lawful purpose. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain (i) any Confidential Information of Customer, (ii) any information that identifies or can be reasonably used to identify an individual person, (iii) any information that identifies or can be reasonably used to identify Customer or its affiliates and their suppliers, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviors of Customer.
6.5 Personal Information. This Section 6.5 applies only to personal information collected by Progress Learning through the Services. Personal information is retained only for educational purposes. Progress Learning will only use the personal information provided for the purpose for which such information was provided, including for the recording and tracking of student results on assessment items within the Software Services and can be accessed only by the individual student and their teachers or administrators at their school or district. Customer information may also be used to contact Customer when necessary or appropriate. Demographic and profile data is also used to tailor the Customer and Authorized User experience, including by showing content Progress Learning determines may interest the Customer or Authorized Users. In accordance with the Family Education Rights and Privacy Act (FERPA), the Children’s Online Privacy Protection Act (COPPA) and other applicable law, none of the collected personal information is sold to or shared with any third party.
Unless students and their parents/guardians separately authorize us to do so, we will not knowingly retain students’ personally identifiable information beyond the time period required to support the educational and other purposes authorized by the Customer, except that we reserve the right to retain data on backed-up, electronically stored records, the destruction of which would be unreasonably burdensome.
7. Limited Warranty; Disclaimer
7.1 Limited Warranty. Progress Learning represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software Services will perform substantially in accordance with the documentation under normal use and circumstances. In the event of Progress Learning’s breach of the foregoing warranty, Progress Learning’s sole and exclusive obligation and liability, and Customer’s sole and exclusive remedy, shall be for Progress Learning to use commercially reasonable efforts to cure such breach. If Progress Learning cannot cure such breach within 30 days after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement upon 30 days advance written notice to Progress Learning.
7.2 Disclaimer. Other than as expressly set forth in section 7.1, EACH PARTY DISCLAIMS ALL warranties, conditions, AND representations to THE OTHER PARTY regarding this agreement, whether oral or written, express, implied, or statutory. Without limiting the foregoing, any implied warranty or condition of merchantability, the implied warranty against infringement, the implied warranty or condition of fitness for a particular purpose, and those arising from a course of dealing or usage of trade are expressly excluded and disclaimed BY PROGRESS LEARNING. No warranty is made that use of the services will be error free or uninterrupted, that any errors or defects in the services will be corrected, or that the services functionality will meet Customer’s requirements.
8. Limited Liability
8.1 Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROGRESS LEARNING PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.3 Exceptions. The exclusions and limitations in Section 8.1 and Section 8.2 shall not apply to: (a) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 6 (Non-Disclosure and Confidentiality); or (b) a party’s obligations under Section 9 (Indemnification).
9.1 Progress Learning Indemnification. Progress Learning shall defend Customer and its officers, directors, employees, agents, successors and permitted assigns against any third party claim, suit, action or proceeding (each, an “Action”) based on a claim that Customer’s receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Customer to the extent based on such an Action; provided, however, that Progress Learning shall have no obligations under this Section 9.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Customer to Progress Learning; (b) use of the Services in combination with any materials, software, or equipment not supplied to Customer or specified by Progress Learning in writing; or (c) any modifications or changes made to the Services by or on behalf of any person or entity other than Progress Learning. If the Services, or any part thereof, become, or in the opinion of Progress Learning may become, the subject of a claim of infringement or misappropriation, Progress Learning may, at its option: (i) procure for Customer the right to use such Services free of any liability; (ii) replace or modify the Services to make them non-infringing; or (iii) terminate this Agreement and refund to Customer any portion of the fees prepaid by Customer for the infringing Services.
9.2 Customer Indemnification. Customer shall defend Progress Learning and its officers, directors, employees, agents, affiliates, successors and permitted assigns against all Actions based on a claim that any information or materials provided by Customer, or Progress Learning’s receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Progress Learning to the extent based on such an Action.9.3 Indemnification Procedures. The indemnifying party shall solely control the defense and settlement of the applicable Action. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that requires the indemnified party to pay monies or admit liability without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 9.1 shall not relieve the indemnifying party of its obligations under this Section 9.1 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
10. Terms and Termination
10.1 Initial Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for the initial term set forth on the quote (“Initial Term”) until all of your subscription terms expire, unless earlier terminated as provided for below.
10.2 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as provided below:
a. By either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party including the failure to pay any fees due to Progress Learning; or
b. By either party if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.
10.3 Effect. Upon termination of this Agreement for any reason, all rights and licenses granted by Progress Learning hereunder to Customer will immediately cease. Within 30 days after termination or expiration of this Agreement, each party shall return or destroy the Confidential Information of the other party.10.4 Survival. The rights and obligations of the parties set forth in this Section 10.4 and Sections 2.7, 3, 4, 6, 7.2, 8, 9, 10.3, 10.4, and 11, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties.
11.2 Conflicting Terms. Notwithstanding the content of any Customer purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
11.3 Notice. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; or (iii) by a nationally recognized overnight courier service
11.4 Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign the Agreement to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
11.5 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.
11.6 Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
11.7 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
11.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
11.9 Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.10 Force Majeure. Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties.
11.11 Equitable Relief. Each party acknowledges that a breach by a party of Section 2.7 (Restrictions) or Section 6 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
11.12 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.11.13 Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
Please contact us at info@Progress Learning.com if you have any questions or comments about this Policy. You can also contact us by general mail or phone listed below. General comments about our web site can be directed to info@Progress Learning.com.
2201 N Central Expy
Richardson, Texas, 75080