(Last Updated: September 6th, 2022)
1. Accepting the Terms
Your use of The EarlyBird Solution constitutes your agreement, without modification, to all of the terms, conditions, and notices in these Terms. If you do not accept these Terms, you may not use the Services.
2. License to Use Services
Subject to the terms and conditions of this Agreement and any agreement entered into by you relating to the Services, EarlyBird Education grants you a limited, non-exclusive, non-transferable, license to access and use the Services (in object code form only). You shall not: (a) copy the Services or any part, feature, function or user interface thereof; (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) attempt to gain unauthorized access to the Services or its related systems or networks or resell, distribute or otherwise make the Services available to any third party; or (d) reverse engineer the Services or engage in other efforts to try and uncover or learn any source code underlying the Services (to the extent such restriction is permitted by law).
Further, you agree not to use or attempt to use any engine, software, tool, agent or other device or other mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Services.
3. EarlyBird Education’s Rights
All right, title, and interest in and to the Services and all underlying ideas, concepts, procedures, processes, principles, know-how, methods of operation, images, source code, and specifications related thereto, together with any updates, enhancements, modifications, improvements or derivative works thereto, in each case including all copyrights, trade names, trademarks and other intellectual property rights therein (collectively, the “EarlyBird Education IP”), is, and shall remain the sole and exclusive property of EarlyBird Education or its licensors. Certain EarlyBird Education IP is protected by United States copyright laws (and other laws relating to intellectual property). The Services are licensed, not sold, to you hereunder, and, except for the express limited license rights granted to you in Section 2 of this Agreement, you do not have any rights in or to the EarlyBird Education IP. You hereby grant to EarlyBird Education a royalty-free, perpetual, worldwide, non-exclusive, irrevocable right to use or incorporate into the Services and/or any specifications, without restriction or obligation, any suggestions, enhancements, recommendations or other feedback provided by you with respect to the Services.
4. Privacy of Your Personal Information
You agree that EarlyBird Education may use and maintain your data according to the Data Privacy Agreement executed by you and EarlyBird Education (“DPA”), as part of the Services. You give EarlyBird Education permission to combine information you enter or upload for the Services with that of other users of the Services and/or other EarlyBird Education services. For example, this means that EarlyBird Education and its respective third-party service providers may use your and other users’ non-identifiable data to improve and support the Services and/or for marketing purposes, including but not limited to a statistical analysis of the number of users using the Services.
5. Your Use of the Services
Your right to access and use the Services is personal to you and is not transferable by you to any other entity. You will only use the Services for your own internal, non-commercial, educational use, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. EarlyBird Education is not responsible for your use of the Services in a manner prohibited by applicable law. You may only use the Services in a manner that does not violate, infringe or misappropriate any third-party rights.
You further agree that you will not share your account or password with anyone, and you must protect the security of your account and your password. You are responsible for any activity associated with your account. If you have a school or district account, you are responsible for ensuring that each authorized user associated with your account complies with all of the restrictions set forth in this Agreement.
6. Third Party Links
When visiting the EarlyBird Education website or using the Services, you may encounter links to web pages and sites which are not owned or controlled by EarlyBird Education. EarlyBird Education makes no warranties or claims regarding services from these sites, and no such warranties or claims should be implied or assumed. EarlyBird Education encourages you to review the privacy statements and policies of websites you choose to link to from EarlyBird Education so that you can understand how those websites collect, use, and share your information. EarlyBird Education is not responsible for the privacy policies, statements, or other content on websites not owned or controlled by EarlyBird Education.
7. Privacy of Student Records
EarlyBird Education will abide to the following terms with respect to the privacy of student educational records:
Student records obtained by EarlyBird Education from an educational institution continue to be the property of and under the control of the educational institution. The educational institution retains full ownership rights to the personal information and education records it provides to EarlyBird Education.
EarlyBird Education will not use any information in a student education record for any purpose other than those required or specifically permitted by this Agreement.
Parents, legal guardians, or eligible students may review personally identifiable information in the student’s records and correct erroneous information by contacting their educational institution.
EarlyBird Education is committed to maintaining the security and confidentiality of student records. In the event of a data breach, EarlyBird Education will adhere to the applicable Federal and/or State data breach notification requirements. For purposes of this policy, a breach is any unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of personal information that we maintain.
In addition, EarlyBird Education takes various security measures, including physical, administrative, and technical measures to help defend against the unauthorized access and disclosure of your information. In addition to the restrictions discussed in this Agreement, our employees are required to comply with information security safeguards, and our systems are protected by technological measures to help prevent unauthorized individuals from gaining access.
Notwithstanding these precautions, no system can be completely secure and there remains a risk that unauthorized access or use, hardware or software failure, or a number of other factors may compromise the security of your information. Upon discovery of any unauthorized acquisition of user personal information, EarlyBird Education will take immediate measures to safeguard and prevent further dissemination of any such personal information. When reasonably able to do so, EarlyBird Education will notify the impacted parties via contact information on record, and such notifications will include information required by applicable data breach notification laws.
EarlyBird Education will delete or de-identify personal information under the following circumstances: (1) upon expiration or termination of our agreement with an educational institution, or (2) at the direction or request of the educational institution.
EarlyBird Education will work with educational institutions to ensure compliance with the Family Educational Rights and Privacy Act. EarlyBird Education prohibits using personally identifiable information in student records to engage in targeted advertising. Notwithstanding the foregoing, nothing in this Agreement will prohibit EarlyBird Education from utilizing de-identified user information for product development or improvement services.
8. Rights You Grant to EarlyBird Education
By submitting information, data, passwords, usernames, other log in information, materials and other content to EarlyBird Education through the Services, you are licensing that content to EarlyBird Education for the purpose of providing the Services. EarlyBird Education may use and store the content in accordance with this Agreement.
As a condition of your use of the Services, you warrant to EarlyBird Education that you will not use the Services for any purpose that is unlawful or prohibited by this Agreement. You agree not to use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use of the Services. You agree not to obtain or attempt to obtain through the Services any materials or information not intentionally made available to you through the Services.
9. Right to Use Name/Logo for Marketing
You hereby grant to EarlyBird the right to use your organization’s name, and where appropriate, logo in marketing, sales, financial, and public relations materials and other communications solely to identify you as an EarlyBird customer. Other than as expressly stated herein, EarlyBird shall not use your party’s marks, codes, drawings or specifications without your prior written permission.
10. Dispute Resolution
In the event that any dispute, controversy, or claim should arise out of or relate to this Agreement, the Parties agree to use their best efforts to resolve such dispute(s) promptly and amicably through direct negotiation. To the extent that any such dispute cannot be settled through negotiation, the Parties agree that the dispute shall be finally settled in Norfolk County, Massachusetts, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each Party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Norfolk County, Massachusetts or the United States District Court for the District of Massachusetts. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND EARLYBIRD EDUCATION ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
11. Intended Third-Party Beneficiary
The Parties hereby expressly acknowledge and agree that the Services are licensed to you in connection with Florida State University (“FSU”). FSU is a third party beneficiary to this Agreement, and upon your acceptance of this Agreement, FSU will have the right, and will be deemed to have accepted the right, to enforce the terms of this Agreement against you as a third party beneficiary of this Agreement.
Certain software and content incorporated into the Services is Copyright © Boston Children’s Hospital and Florida State University Research Foundation. All rights not expressly granted herein are reserved by such parties.
13. Disclaimer of Representations and Warranties & Limitation of Liability
THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
THE SITES, SERVICES, INFORMATION, DATA, FEATURES, AND ALL CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES OR PROVIDED THROUGH THE SERVICES (WHETHER OR NOT SPONSORED) ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EARLYBIRD EDUCATION, ITS AFFILIATES, AND THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS AND LICENSORS (COLLECTIVELY, THE “EARLYBIRD PARTIES”), MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS OR CAPACITY, OR THAT THE OPERATION OF THE SOFTWARE INCLUDED WITHIN THE SERVICES WILL BE ERROR FREE. ALL OTHER WARRANTIES RELATING TO THE SERVICES OR THIS AGREEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY THE EARLYBIRD PARTIES. THE EARLYBIRD PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR (C) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
IN NO EVENT WILL (I) THE EARLYBIRD PARTIES BE LIABLE FOR ANY LOST PROFITS, LOST OPPORTUNITY, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR AS A RESULT OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PROVISION OF SERVICES, (II) ANY OF EARLYBIRD EDUCATION’S AFFILIATES OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS OR LICENSORS BE LIABLE TO YOU FOR ANY DIRECT DAMAGES IN CONNECTION WITH THIS AGREEMENT, IN THE CASE OF THE FOREGOING CLAUSES (I) AND (II), EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EARLYBIRD EDUCATION’S ENTIRE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR AS A RESULT OF THIS AGREEMENT EXCEED THE GREATER OF TWENTY FIVE DOLLARS ($25) OR THE AMOUNT YOU ACTUALLY PAID EARLYBIRD EDUCATION IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS IN THIS PARAGRAPH WILL APPLY TO ALL ACTIONS ARISING UNDER THIS AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS DO NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. Digital Millennium Copyright Act Notice
We respect the intellectual property rights of others and expect our users to do the same. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Services in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by U.S. copyright law. Owners of copyrighted works who believe that their rights under U.S. copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please contact us at: firstname.lastname@example.org for more information on how to request removal of allegedly infringing content.
15. Changes to the Services
EarlyBird Education reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services with or without notice. EarlyBird Education reserves the right to change the Services in our sole discretion and from time to time. If you do not agree to the changes after receiving a notice of the change to the Services, you may stop using the Services. Your use of the Services after you are notified of any change(s) will constitute your agreement to such change(s). You agree that EarlyBird Education shall not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Services.
16. Your Indemnification of EarlyBird Education
You shall defend, indemnify and hold harmless the EarlyBird Parties and their respective officers, directors, shareholders, employees, consultants, agents, licensors and suppliers, from and against all claims, suits, and proceedings, and all losses, liabilities, and expenses, that arise out of or relate to such claims, suits or proceedings, including but not limited to attorneys’ fees, arising out of or attributable to any breach of this Agreement or any activity by you in relation to your use of the Services.
17. Entire Agreement
This Agreement contains the entire understanding between you and EarlyBird Education regarding the subject matter of this Agreement and this Agreement supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between EarlyBird Education and you with respect to the subject matter of this Agreement.
You may not assign this Agreement to any third party without the prior written consent of EarlyBird Education. Any such purported assignment shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, and permitted assigns, if any. EarlyBird Education may assign its rights and obligations under this Agreement to a third party without your consent.