POSTED: 25 MAY 2018
Welcome to GoReact! Safekeeping of your data is critical to us and a responsibility that we embrace. Here we describe how we collect, use and handle your information when you use our websites, mobile applications, software and/or services (“Service”).
What information we collect
We collect and use the following information to provide, improve and protect our Service:
Account. We collect, and associate with your account, information such as your name, email address, phone number, and payment information.
Service. When you use our Service, we store, process and transmit your files (including items like your videos, recordings, files, comments, other content, and so on) and information related to them. This will make it easy for you to do things like share and interact with these items.
Usage. In order to improve the Service, we collect information from and about the devices you use to access the Service. This includes things like IP addresses, the type of browser and device you use, the web page you visited before coming to our sites, and identifiers associated with your devices. Your devices (depending on their settings) may also transmit location information to the Service.
Cookies and other technologies. We use technologies like cookies and pixel tags to provide, improve, protect and promote our Service. For example, cookies help us with things like remembering your username for your next visit, understanding how you interact with our Service, and improving them based on that information. You can set your browser to not accept cookies, but this will limit your ability to use the Service.
Video information. You may sometimes use the Service in connection with your participation in an activity in which your image, words, or actions are recorded by the Service. You may or may not be logged in to the Service at the time, and you consent to the use of your image, words, and actions (solely in connection with the Service), regardless of whether or not you are logged in at the time your image, words, or actions are recorded.
Sharing of Information
On a limited basis, we may share information as described below in order to facilitate delivering the Service to you, but will never sell it to advertisers or other third-parties.
Other users. Our Service displays information like your name or email address to other users only in places where that information is configured to be shared. The disclosure of information from student records, particularly grades and performance information, is governed in the United States by the Family Educational Rights and Privacy Act (“FERPA”), and such information is shared only with your course instructor or other institutional administrators as permitted by FERPA.
Organizational Administrators. If your account is associated with a GoReact organizational account, there may be an administrator in your organization that has access to and control of your GoReact account for purposes of managing the Service. Please refer to your organization’s internal policies if you have questions about this.
Legal. We may disclose your information to third parties if we determine that such disclosure is reasonably necessary to (a) comply with the law; (b) protect any person from death or serious bodily injury; (c) prevent fraud or abuse of GoReact or our users; or (d) protect GoReact’s property rights. Please contact firstname.lastname@example.org with any privacy questions or concerns.
How we use and secure your information
Security. We employ both an internal technical team and external security experts in order to keep your information secure and test for vulnerabilities. We also continue to work on features to keep your information safe.
Retention and right to deletion. We’ll retain information you store on our Service for as long as we need it to provide you the Service. In most cases, that means information will be kept for at least three (3) years, which most users find helpful in order to retrieve past samples of their work. If you request to delete your account, you may also request that we delete your information, and/or you may also request a copy of your data we have stored in our system. Please note: (a) there might be some latency in deleting this information from our servers and back-up storage; (b) feedback and similar content you’ve provided for others will remain, and (c) we may retain certain information if necessary to comply with our legal obligations, resolve disputes, or enforce our agreements.
Where information is stored
Around the world. To provide you with the Service, we may store, process and transmit information in the United States and locations around the world – including those outside your country. Information may also be stored locally on the devices you use to access the Service.
If you are a U.S. customer, your data will only be stored and processed in the United States.
EU Provisions. GoReact offers standard EU model clauses (including GDPR updates) for information security as required for EU customers. Please contact your account representative if you are located within the EU and require these additional terms.
GoReact collects certain indirect or aggregate information as a result of your use of the Service. Such information will always be anonymized and will never contain user-identifiable data such as name, email address, or other direct identifiers. Any such de-identification will comply with U.S. FERPA and HIPAA requirements as well as GDPR.
How You Control Your Information
Upon creation of your account in the Service, you will be expressly asked for your consent to how we will store and use your information. We will track that consent, and you will have the ability to withdraw your consent and delete your account at any time from within your user profile in the Service. In addition, while you use the Service, you’ll be able to see on any given activity who will have access to your content.
If we are involved in a reorganization, merger, acquisition or sale of our assets, your information may be transferred as part of that transaction. We will notify you (for example, via a message to the email address associated with your account) of any such transaction and outline your choices in that event.
Have questions or concerns about GoReact, our Service and/or privacy? Contact us at email@example.com.
Posted: 20 May 2019
This GoReact Customer Terms Agreement is entered into by and between SpeakWorks, Inc., d/b/a GoReact, a Delaware corporation (“GoReact”) and the organization named in one or more order forms expressly governed by this GoReact Customer Terms Agreement (such organization, the “Customer”, and each such order form, an “Order Form”). This GoReact Customer Terms Agreement governs access to and use of the GoReact software and services set forth on the applicable Order Form (together, the “Service”). By signing below or on an applicable Order Form, Customer acknowledges and agrees to the terms and provisions of this GoReact Customer Terms Agreement, any addenda attached thereto (each an “Addendum”) and any applicable Order Forms (collectively, the “Agreement”). Any Addenda to this Agreement will govern in the event of a conflict between the terms and conditions of this GoReact Customer Terms Agreement and the applicable Addendum.
1. ACCOUNT AND RESPONSIBILITIES.
For most uses of the Service, an end user needs to register as a “User” under a Customer’s Service account (“Account”). A “User” is anyone who is registered for the Service, and may include (but is not limited to) a Customer’s employees, students, clients, consultants, contractors and agents. Customer is responsible to ensure that its information is accurate and kept up to date. If a User registers via an invitation from Customer, certain uses of the Service by that User may be governed by this Agreement. Customer understands the need for its Users to safeguard their passwords to the Service, to make sure others don’t have access to it, and to log off when finished using the Service. GoReact is not responsible for any loss or damage from Customer or its Users not complying with these safeguards. Most of the Service components require a current version browser and a broadband/high-speed Internet connection. Customer and its Users are responsible for accessing these resources and for their performance and reliability.
2. CUSTOMER RELATIONSHIP.
GoReact and Customer (including Customer’s Users) are independent contractors under this Agreement. Neither party is authorized to make statements or commitments on behalf of the other party except as noted herein. Customer will ensure that all access and use of the Service by its Users is in accordance with this Agreement. Any action or breach by any of Customer’s Users is considered an action or breach by Customer and Customer waives any and all defenses that Customer may have as to any resulting liability. Either party may publicize the existence of this Agreement and the general nature of the parties’ relationship, unless directed not to do so in writing by the other party. Unless otherwise required by law (such as open records laws), Fees (as defined below) associated with this Agreement are Confidential Information (as defined below) and should not be disclosed without consent of the other party.
3. USE OF THE SERVICE.
(a) Some offerings of the Service allow Customer to download software (“Software”) to a desktop or mobile device which may update automatically. So long as Customer complies with this Agreement, GoReact gives Customer a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Service. To the extent any component of the Software may be offered under an open source license, GoReact will make that license available to Customer and the provisions of that license may expressly override the terms of this Agreement.
(b) Customer and its Users may not use the Service for any purposes other than those described in this Agreement. Specifically, Customer and its Users must use the Service in compliance with the GoReact Acceptable Use Policy, located at goreact.com/acceptable. Customer will obtain from Users any consents necessary to allow Customer-authorized administrative Users (“Administrators”) to engage in the activities described in this Agreement and to allow GoReact to provide the Service. Customer will comply with laws and regulations applicable to Customer’s use of the Service. Administrators may have the ability to access, disclose, restrict or remove Customer Data (as defined below) in or from the Account. Administrators may also have the ability to monitor, restrict, or terminate access to the Account. GoReact’s responsibilities do not extend to the internal management or administration of the Service as it relates to Customer. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator subaccounts; (ii) managing access to Administrator subaccounts; and (iii) ensuring that Administrators’ use of the Service complies with this Agreement.
(c) Customer will use commercially reasonable efforts to prevent unauthorized use of the Service by its Users and will terminate any unauthorized use of or access to the Service. Customer will not, nor will it permit others to, (i) sell, resell, or lease the Service; (ii) use the Service for activities where use or failure of the Service could lead to physical damage, death, or personal injury; or (iii) modify, translate, disassemble, create derivative works based on, reverse-assemble, reverse-compile or otherwise reverse engineer the Service. This Section 3(c) shall survive the termination of this Agreement.
(d) GoReact sometimes releases products and features that we are still testing and evaluating. Those items have been marked beta, preview, early access, evaluation, or with words or phrases with similar meanings (collectively “Beta Services”) and may not be as reliable as GoReact’s other services. Notwithstanding anything to the contrary in this Agreement or in Schedule 1, the following terms apply to all Beta Services: (i) Customer may use or decline to use any Beta Services; (ii) Beta Services may not be supported and may be changed at any time without notice to Customer; (iii) Beta Services may not be as reliable or available as other GoReact Services; (iv) Beta Services have not been subjected to the same security measures and auditing to which the Service has been subjected; and (v) GOREACT WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES—CUSTOMER USES THE BETA SERVICE SOLELY AT CUSTOMER’S OWNRISK.
(a) Customer and its Users, when using the Service, will provide GoReact with videos, recordings, files, comments, other content, and so on (“Submissions”). Any Submission posted by Customer or its Users is the property of such party. This Agreement does not give GoReact any rights to Submissions except for the limited rights that enable GoReact to offer the Service.
(b) All Submissions must comply with GoReact’s Acceptable Use Policy located at goreact.com/acceptable. Content in or on the Service may be protected by others’ Intellectual Property Rights. Customer agrees to not copy, upload, download or share content unless it has the right to do so. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
(c) Customer and its Users are solely responsible for any Submissions posted to the Service. GoReact may review Customer conduct and content for compliance with this Agreement; however, GoReact has no obligation to do so. GoReact is not responsible in any way for any Submission or related content posted and shared by Users or other third parties via the Service. GoReact may remove any Submission at its sole discretion.
(d) Customer and its Users use any Submissions at their own risk. Any User’s interactions with other Users are solely the responsibility of those Users. GoReact is not responsible for anything that occurs as a result of those interactions. If there is a dispute between Users, GoReact is under no obligation to become involved in such dispute.
(e) Customer hereby gives GoReact permission to host Submissions, back them up, and share them at the direction of Customer. The Service provides Customer with features like thumbnails, downloads, document previews, sorting, editing, sharing and searching. These and other features may require GoReact systems to access, store and scan Submissions. Customer hereby gives GoReact permission to perform such actions, and this permission extends to GoReact affiliates and trusted third parties with whom GoReact works, solely for the purpose of providing the Service. Posting Submissions over the Internet involves networks not controlled by GoReact. GoReact is not responsible for Submissions that are delayed, lost, altered, or stored during transmission over those networks.
(f) In the United States, the Children’s Online Privacy Protection Act (“COPPA”) may apply to Submissions, including videos and images, that include children under the age of 13 (for example, recording of an elementary school classroom for purposes of teacher development). Customer and its Users are solely responsible for COPPA compliance with relation to such Submissions, including obtaining permission from the parents of any children under the age of 13 for the purposes of using the Service. GoReact is not responsible in any way for Customer’s failure to obtain such permission.
(g) GoReact will use industry standard or better technical and organizational security measures to transfer, store, and process Submissions and Users’ Account information (collectively, “Customer Data”). These measures include appropriate administrative, physical, and technical safeguards to secure Submissions and other Customer Data from unauthorized access, disclosure, and use. GoReact will conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner. GoReact will promptly notify Customer in the event of a security or privacy incident. (For more information on the Amazon secure cloud that supports GoReact, please see aws.amazon.com/security.)
(h) In addition, while GoReact stores Submissions and other Customer Data for a length of time (typically at least 3 years), the Service is not an archive. Customer is responsible for maintaining independent archival and backup copies of any Submissions and Customer Data that Customer wishes to preserve.
5. SUPPORT AND ACCESSIBILITY.
Subject to payment of the Fees (as defined below) by Customer, GoReact will provide commercially reasonable support for the Service as specified in the published online support policy for the Service which may be found at goreact.com/support.
GoReact has designed the Service to support various disabled accessibility standards, including Section 508 of the U.S. Rehabilitation Act as well as global Web Content Accessibility Guidelines (WCAG). For current accessibility support, please see goreact.com/compliance.
6. FEES AND PAYMENT.
Customer will pay, and authorizes GoReact to charge using Customer’s selected payment method, all applicable fees related to the Service charged by GoReact as indicated on any applicable Order Form (“Fees”). If Fees are invoiced by GoReact, such Fees will be due within thirty (30) days after the date of GoReact’s invoice to Customer. The Fees are exclusive of, and Customer is responsible for, all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, other than taxes based on GoReact’s income in the United States. All costs and expenses incurred by Customer in connection herewith are Customer’s sole responsibility. An administrative fee of $35.00 per invoice will be charged for any electronic transaction that is declined and for any returned checks. Fees are non-refundable except as required by law and as otherwise expressly stated herein. In addition, any amounts not paid when due shall bear interest at a nominal rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. GoReact shall be entitled to withhold performance and discontinue the Service until all Fees due are paid in full.
GoReact may change the fees in effect, but will give Customer at least thirty (30) days advance notice of such changes via the email address associated with Customer’s account, and will not apply such fee changes to any current Term. Upon renewal, if Customer chooses not to accept the new Fees, they may cancel without penalty at the next renewal date upon written notice to GoReact prior to such renewal date.
7. TERM & TERMINATION.
(a) This Agreement shall commence upon execution of an Order Form by Customer and remain in effect until Customer’s subscription or license to the Service (as more fully described in an Order Form) expires or terminates, or until the Agreement is otherwise terminated as provided for in this Section 7 or the Order Form (“Term”).
(b) GoReact may terminate this Agreement and associated access to the Service at any time and for any reason upon thirty (30) days written notice to Customer. Upon such termination for convenience, GoReact will refund to Customer any prepaid and unused Fees. Either party may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice shall expressly state the reasons for the claimed breach in sufficient detail so as to provide the breaching party a meaningful opportunity to cure such alleged breach.
(c) Upon termination of this Agreement in accordance with this Section, Customer’s Account and right to access and use the Service will terminate immediately. If this Agreement is terminated for any reason other than a termination expressly permitted by this Agreement, Customer agrees that GoReact shall be entitled to all Fees due pursuant to this Agreement for the entire Term. However, if this Agreement is terminated as a result of a material breach on GoReact’s part, GoReact shall refund the unused portion of any prepaid subscription Fees pursuant to this Agreement.
(d) Following termination of this Agreement and/or Customer’s use of the Service, GoReact may immediately deactivate Accounts of Customer and its Users and, following a reasonable period of not less than thirty (30) days, shall be entitled to delete such Accounts, including all Submissions and Customer Data therein. During this 30-day period and upon reasonable written request, GoReact, in its discretion, will grant Customer limited access to the Service for the sole purpose of retrieving Submissions and Customer Data, provided that all amounts and Fees owed to GoReact in connection with this Agreement are paid in full. GoReact shall not be liable to Customer nor to any third party for any termination of access to the Service or deletion of Submissions or Customer Data.
(e) GoReact reserves the right to suspend access to any Accounts and/or use of the Service in its reasonable discretion. Such suspension will apply to the entire Account and any sub-accounts. Customer agrees that GoReact shall not be liable for any results of suspension of the Service pursuant to this paragraph. GoReact will use commercially reasonable efforts to notify Customers of any material modifications or discontinuations of the Service and Customer agrees that GoReact will not be liable for any modification, suspension, or discontinuance of the Service or any part thereof. Any future release, update, or other addition to the functionality of the Service shall be subject to this Agreement.
8. INTELLECTUAL PROPERTY OWNERSHIP.
All rights, title, and interest in the Service (including, but not limited to, the GoReact websites, mobile applications, content, and all software, names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other GoReact intellectual property appearing on the Service, and the organization, compilation, look and feel of the Service), are owned by GoReact and/or its suppliers, licensors, and business partners (“Business Partners”), and are protected by U.S. and international copyright and other intellectual property laws. GoReact® and the GoReact logo are registered trademarks of GoReact. The names of any actual companies and products appearing within the Service may be the trademarks of their respective owners. GoReact (and/or its Business Partners) retain all rights with respect to the Service and content except those expressly granted to Customer in this Agreement, and Customer shall not display or use any GoReact trademarks, service marks, logos, or product names without GoReact’s express prior written permission. Customer shall not alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Service. Except as expressly provided herein, nothing on the Service shall be construed as conferring to Customer any license under GoReact’s (and/or its Business Partners’) Intellectual Property Rights, whether by estoppel, implication or otherwise. In addition, GoReact shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including its Users, relating to the operation of the Service.
9. LINKS TO THIRD PARTY SITES.
The Service may contain links to third party web sites (“Linked Sites”). GoReact has no control over these Linked Sites or their content. GoReact cannot and does not guarantee, represent, or warrant that the content contained in the Linked Sites, including, without limitation other links, is accurate, legal, and/or inoffensive. GoReact does not endorse the content of any Linked Site, nor does GoReact warrant that a Linked Site will not contain computer viruses or other harmful code that can impact computer or other web access devices. By using the Service to link to another site, Customer agrees and understands that such use is entirely at Customer’s own risk, and that Customer may not make any claims against GoReact for any damages or losses whatsoever resulting from such use. However, if there is a problem with a Linked Site, please let GoReact know at firstname.lastname@example.org, and GoReact may investigate the link and take appropriate action in order to improve the Service.
10. WARRANTY AND DISCLAIMER.
(a) As limited by the terms of this Agreement, GoReact warrants to Customer (not to individual Users) that, during the Term, the Service will operate substantially in accordance with the documentation GoReact provides to Customer. This limited warranty shall not apply to problems that result from: (i) factors outside of GoReact’s reasonable control; (ii) any failure by Customer to comply with this Agreement; (iii) any failure by Users to use the Service in accordance with GoReact’s User Terms (found at goreact.com/terms) or other instructions provided by GoReact; (iv) any unauthorized use of the Service; (v) Customer’s, User’s or any third party’s hardware, software, and equipment; (vi) errors in entering, analyzing, or viewing Submissions; (vii) the fault or negligence of Customer, Users, operator error, improper use or misuse of the Service, or any other causes external to the Service or GoReact; or (viii) downtime as a result of scheduled maintenance performed by or for GoReact. In the event of a material breach of the foregoing warranty, Customer’s sole and exclusive remedy, and GoReact’s only obligation, at GoReact’s discretion, will be to repair, modify or replace the nonconforming Service within thirty (30) days after GoReact receives Customer’s written notice of the material nonconformity, or if GoReact determines that it is not commercially feasible to repair, modify or replace the nonconforming Service in a manner that removes such nonconformity, GoReact will refund the amount of any Fees actually paid by Customer to GoReact under this Agreement for up to the previous four (4) months of the Service and Customer will have the option to terminate the Agreement without penalty upon written notice to GoReact within thirty (30) days of being informed of such determination.
(b) EXCEPT AS EXPRESSLY STATED OTHERWISE HEREIN, THE SERVICE (INCLUDING GOREACT WEBSITES, MOBILE APPLICATIONS, AND ALL OTHER FEATURES ON THE SERVICE) ARE PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, OR NON-INFRINGEMENT. SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN GOREACT HEREBY GRANTS THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY SUCH APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM GOREACT, ITS EMPLOYEES, AGENTS, SUPPLIERS OR ANY OTHER PERSONS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION. ADDITIONALLY, GOREACT DOES NOT MAKE ANY WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, OR THAT CUSTOMER’S USE OF THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS, OR THAT THE SERVICE IS CORRECT, ACCURATE, OR RELIABLE, OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE CONTENT PROVIDED ON THE SERVICE IS FOR CONVENIENCE ONLY AND GOREACT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY USER SUBMISSION, OPINION, STATEMENT, PRODUCT, ADVICE, RECOMMENDATION OR SERVICE MADE, PROMOTED, ADVERTISED OR OFFERED BY ANY GOREACT USER, THIRD PARTY, OR OTHER ENTITY MADE AVAILABLE THROUGH THE SERVICE OR ANY LINKED SITES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND GOREACT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
11. LIMITATION OF LIABILITY.
(a) CUSTOMER AGREES THAT THE CONSIDERATION WHICH GOREACT RECEIVES HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY GOREACT OF THE RISK OF CUSTOMER INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 11(B) BELOW.
(B) THE MAXIMUM LIABILITY OF EITHER PARTY TO ANY PERSON, FIRM OR CORPORATION WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF FOUR (4) MONTHS OF FEES APPLICABLE AT THE TIME OF THE EVENT GIVING RISE TO THE CLAIM. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICE AVAILABLE TO CUSTOMER AND THAT, WERE GOREACT TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO INDEMNITY OBLIGATIONS HEREIN. Certain jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
12. RELEASE, RESPONSIBILITY AND DISPUTE RESOLUTION.
(a) Customer hereby irrevocably and unconditionally releases and forever discharges GoReact (and its officers, employees, agents, successors, and assigns) from, and hereby waives, any and all past, present and future claims, demands, and rights of action, whether known or unknown, which arises from or relates to (i) any App Stores, (ii) other Users of the Service including any customer of GoReact, and/or (iii) Linked Sites. IF CUSTOMER IS LOCATED IN CALIFORNIA, CUSTOMER HEREBY EXPRESSLY WAIVES ANY APPLICATION OF CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING.
(b) Each party hereby agrees that it is responsible for its own acts and behavior and the results thereof. As permitted in accordance with applicable state law, and with respect to any claim or action arising out of the activities described or performed under this Agreement, the parties mutually agree that each will also remain responsible for any and all liabilities, claims, damages, charges and expenses (collectively referred to as “Liability”) incurred by reason of the acts or omissions of its employees, governing board members, students, faculty, agents or assigns; and that neither party shall by this Agreement transfer such Liability to the other party.
(c) Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
(a) GoReact shall, at its own expense and subject to the limitations set forth in this Section and any limitations of applicable law (including legal restrictions to which Customer may be subject), defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded, including, without limitation, reasonable attorneys’ fees (collectively, “Losses”) to the extent based upon such a Claim. Excluded from the indemnification obligations in this paragraph are Claims to the extent arising from (i) use of the Service in violation of this Agreement or applicable law, (ii) use of the Service after GoReact notifies Customer to discontinue use because of an infringement claim, or (iii) modifications to the Service or use of the Service in combination with any software, application or service made or provided other than by GoReact.
(b) If a Claim of infringement is brought or threatened, GoReact may, at its sole option and expense, use commercially reasonable efforts either (i) to procure a license that will protect Customer against such Claim without cost to Customer; (ii) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if (i) and (ii) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the prepaid and unused Fees for the terminated portion of the Term. The rights and remedies granted Customer under this paragraph state GoReact’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the Intellectual Property Rights of a third party.
(c) In the event of a potential indemnity obligation under this Section, Customer shall: (i) promptly notify GoReact in writing of such Claim; (ii) allow GoReact to have sole control of its defense and settlement; and (iii) upon request of GoReact, cooperate in all reasonable respects, at GoReact’s cost and expense, with GoReact in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon Customer’s compliance with this Section. The indemnification obligations contained in this Section shall survive termination of this Agreement for one year.
14.IRREPARABLE HARM AND INJUNCTIVE RELIEF.
The Service and the content made available through the Service is the result of significant investment by GoReact in developing, organizing, and presenting various tools and Submissions for the convenience of its Users. By using the Service, Customer hereby acknowledges and recognizes the uniqueness of the services provided by the Service and GoReact’s substantial investments in such services as described herein, such that a breach of this Agreement by Customer could result in irreparable harm to GoReact for which money damages or other legal remedies may not adequately compensate. Accordingly, in the event of a breach of this Agreement, GoReact shall be entitled to seek equitable remedies, including without limitation preliminary and permanent injunctive relief, and Customer explicitly agrees that GoReact will not be required to make a showing of irreparable harm or to post or secure a bond in order to obtain such relief.
For purposes of this Agreement, “Confidential Information” includes, unless otherwise restricted by applicable law, the terms of this Agreement, Submissions, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information shall not include information which: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; or (iv) is aggregate statistical data regarding GoReact’s products and services that does not contain any personally identifiable, User-specific or Customer-specific information. Each party agrees: (x) to keep confidential all Confidential Information; (y) not to use or disclose Confidential Information to any third party except as directed by the disclosing party and only to the extent necessary to perform its obligations or exercise rights under this Agreement; and (z) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this paragraph will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party to seek an appropriate protective order, at disclosing party’s sole expense.
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that GoReact may assign, without Customer’s consent, this Agreement, to (i) a wholly owned subsidiary of GoReact, or (ii) any entity which acquires all or substantially all of the assets of GoReact or into which GoReact is merged or consolidated or to any entity controlling or controlled by GoReact. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
17. PRIVACY; FERPA.
(a) GoReact may track web traffic origination and patterns for visitors to its website and Users of the Service, and may analyze this data for trends and statistics in the aggregate, but this information will be maintained, used and disclosed in aggregate form only and it will not contain personally identifiable information. GoReact may use this aggregate information to analyze trends, administer the Service, track users’ movement, and gather broad demographic information for aggregate use.
(b) Where Customer is a qualifying educational agency or institution under the U.S. Family Educational Rights and Privacy Act (“FERPA”), GoReact acknowledges that for the purposes of this Agreement it is designated as a “school official” with “legitimate educational interests” in Customer data and associated metadata, as defined under FERPA and its implementing regulations, and agrees to abide by the limitations and requirements imposed on school officials under those regulations. As part of Customer’s use of the Service, GoReact may collect data that is defined as Personally Identifiable Information (“PII”) by FERPA. GoReact agrees to use such PII only for the purpose of fulfilling its duties under the Agreement, and will not monitor, share, or disclose any such PII to any third party except as provided for in this Agreement, as required by law, or as authorized in writing by Customer. GoReact specifically agrees not to use any PII for purposes of targeted advertising. Customer agrees that de-identified data, from which all PII-qualifying identifiers have been removed in accordance with FERPA definitions, is not PII and may be used for lawful purposes.
18. COMPLIANCE WITH LAWS.
Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy and electronic communications.
(a) The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If Customer uses the Service outside the United States of America, Customer is responsible for following applicable local laws.
(b) Except for obligations of payment, neither party shall be liable for any delay or failure in performing hereunder if such failure arises, directly or indirectly, out of causes beyond the reasonable control of such party, including acts of strike, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, government action, labor conditions, lightning, power surges or failures, terrorism, failure of telecommunications services (including the Internet), or acts or omissions of communications carriers. Performance shall be deferred until such cause of delay is removed, provided that the delayed party shall notify the other party of such occurrence.
(c) In the event of any dispute between Customer and GoReact arising under or relating to this Agreement or Customer’s use of the Service, in which GoReact is the prevailing party, Customer agrees that, unless otherwise directed by a court of competent jurisdiction or otherwise prohibited by law, Customer will pay GoReact’s reasonable attorneys’ fees in connection with GoReact’s commencement and prosecution of the action, and, if applicable, its defense of claims Customer may bring against GoReact. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. GoReact’s failure to act with respect to a breach by Customer or others does not waive its right to act with respect to subsequent or similar breaches.
(d) This Agreement sets forth the entire understanding and agreement between Customer and GoReact with respect to the subject matter hereof, and supersedes any prior or contemporaneous understanding whether in written or oral form. GoReact may revise this Agreement from time to time and the most current version will always be posted on the GoReact website. GoReact will notify Customer (by, for example, sending an email to the email address associated with the applicable account) of any such revision. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Service within 30 days of receiving notice of the change.
(e) In addition to and subject to the Sections noted as surviving above, the following Sections shall survive termination of this Agreement: 6, 7, 8, 10, 11, 12, 14, 15, 16, 18 and 19.
Posted: 21 November 2016
Thank you for using the GoReact services, web sites, mobile applications, and/or client software (the “Service”). We’re proud of the trust you’ve placed in us, in exchange, we trust you to use the Service responsibly. Specifically, you agree not do any of the following, unless such a restriction is prohibited by law:
- Reverse engineer or decompile the Service, attempt to do so, or assist anyone in doing so.
- Create derivative works of, transmit, perform, reuse, re-post, resell, display, rent, lease, license or otherwise distribute the Service, in whole or in part, unless authorized in writing by GoReact.
- Mirror or frame, or assist third parties in mirroring or framing, any of the web pages contained in the Service, or create Internet links to the Service which include login information, User names, passwords, and/or secure cookies.
- Access the Service in order to build a similar or competitive (in any way, material or immaterial) service.
- Use the Service to: (i) send unsolicited or unauthorized email, advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (ii) harvest, collect, gather or assemble information or data regarding other Users, including email addresses; (iii) transmit any materials that are unlawful, immoral, libelous, abusive, harassing, hateful, tortuous, defamatory, threatening, harmful, invasive of another’s privacy, vulgar, obscene, pornographic, racially or ethnically offensive, encourage conduct that would be considered a criminal offense, or are otherwise objectionable or which are harmful to minors in any way; (iv) transmit any material that may infringe the intellectual property rights or other proprietary rights of third parties, including trademark, copyright, right of privacy, or right of publicity; (v) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs or cancel bots; (vi) interfere with or disrupt the integrity of any data or computer-based information or any servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (vii) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; (viii) harass or interfere with another User’s use and enjoyment of the Service; or (ix) submit any content that contains any falsehoods or misrepresentations that could damage GoReact or any third party or impersonates another person.
- Use any trade name, trademark, or brand name of GoReact in metatags, keywords and/or hidden text without our written consent.
- Use the Service for any unlawful purpose.
- Use automated systems (e.g., robots, spiders) on the Service. However, operators of public search engines may use spiders to copy materials from the Service for the sole purpose of creating publicly available searchable indices of the materials.
- Use the Service in any way which could damage, disable, overburden, or impair the Service or interfere with someone else’s use of the Service.
- Obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service.
- Display or use any trademarks, service marks, logos, or product names unless authorized in writing by GoReact.
- Alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Service.
Posted: 21 November 2016
YOUR ACCOUNT AND YOUR RESPONSIBILITIES
For most uses of the Service, you’ll need to register as a User for an account (“Account”). A “User” is anyone who is registered for the Service.
You agree to ensure that your User information is accurate and kept up to date. You affirm that you are at least 13 years old, and, if you are under 18 years old, that your parent or legal guardian has given you permission to use the Service and agrees on your behalf to the Terms. If you are under the age of 13, do not use the Service.
You agree to safeguard your password to the Service, make sure others don’t have access to your password, and to log off when you’re finished using the Service. We’re not responsible for any loss or damage from you not complying with these safeguards.
Most of the Service components require a current version browser and a broadband/high-speed Internet connection. You agree that these resources and their performance and reliability are your responsibility.
In the United States, the Children’s Online Privacy Protection Act (“COPPA”) may apply to User Submissions, including videos and images, that include children under the age of 13 (for example, recording of an elementary school classroom for purposes of teacher development). You are responsible to comply with requirements of COPPA relating to your User Submissions, including obtaining permission from the parents of any children under the age of 13 who may be recorded as part of your use of the Service. GoReact is not responsible for your failure to do so.
LICENSE AND USE
You may not use the Service for any purposes other than those described in these Terms. Some offerings of our Service allow you to download software (“Software”) to a desktop or mobile device which may update automatically. So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Service. To the extent any component of the Software may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms.
We sometimes release products and features that we are still testing and evaluating. Those Services have been marked beta, preview, early access, or evaluation (or with words or phrases with similar meanings) and may not be as reliable as GoReact’s other services, so please keep that in mind. GoReact isn’t liable for anything that arises out of your use of beta services.
All fees and other charges (“Fees”), if applicable, are due and payable to GoReact at the time of online purchase. You’re responsible for all applicable taxes, and we’ll charge tax when required to do so.
If you purchase a subscription account, we’ll automatically bill you at each periodic renewal until cancellation. You may cancel your GoReact Account at any time but you won’t be issued a refund unless it’s legally required. GoReact may discontinue the Service if any Fees are not paid in full.
We may change the fees in effect but will give you advance notice of these changes via a message to the email address associated with your account.
If you join a GoReact Enterprise account, your use of the Service will be governed by the agreement between that organization and GoReact, and you must use it in compliance with that organization’s terms and policies. Please note that GoReact Enterprise accounts are subject to the organization’s control. Your administrators may be able to access, disclose, restrict, or remove information in or from your GoReact Enterprise account. They may also be able to restrict or terminate your access to a GoReact Enterprise account.
When you use our Service, you provide us with things like your videos, recordings, files, comments, other content, and so on (“User Submissions”). Any User Submission posted by you is yours. These Terms don’t give us any rights to your User Submissions except for the limited rights that enable us to offer the Service.
You’re responsible for your conduct. Your User Submissions and you must comply with our Acceptable Use Policy (goreact.com/acceptable). Content within the Service may be protected by others’ intellectual property rights. You agree not to copy, upload, download or share such content unless you have the right and permission to do so.
We may review your conduct and User Submissions for compliance with these Terms and GoReact’s Acceptable Use Policy; however, we have no obligation to do so. We aren’t responsible for the content people post and share via the Service, and in compliance with applicable laws, we may remove any User Submission at our discretion.
You use all User Submissions at your own risk. Your interactions with other Users are solely the responsibility of you and that User. GoReact is not responsible for anything that occurs as a result of those interactions. If there is a dispute between you and any other User, we are under no obligation to become involved.
We need your permission to do things like host your User Submissions, back them up, and share them when you ask us to. Our Service also provides you with features like thumbnails, downloads, document previews, sorting, editing, sharing and searching. These and other features may require our systems to access, store and scan your User Submissions. You give us permission to do those things, and this permission extends to our affiliates and trusted third parties that we work with to deliver the Service.
Posting User Submissions via the Internet involves networks not controlled by GoReact. We’re not responsible for User Submissions that are delayed, lost, altered, or stored during transmission over those networks.
GoReact will use industry standard or better technical and organizational security measures to transfer, store, and process User Submissions. These measures include appropriate administrative, physical, and technical safeguards to secure User Submissions and other data from unauthorized access, disclosure, and use. We’ll also conduct periodic risk assessments and remediate any identified security vulnerabilities in a reasonable timeframe. GoReact will notify you in the event of a security or privacy incident. (For more information on the Amazon secure cloud that supports GoReact, please see aws.amazon.com/security.)
Finally, while we store User Submissions for a length of time (typically at least 3 years), the Service is not an archive. You’re responsible for maintaining independent archival and backup copies of any User Submissions that you wish to preserve.
DATA AND PRIVACY
We may track web traffic origination and patterns for visitors to our website and users of the Service, and we may analyze this data for trends and statistics in the aggregate, but this information will be maintained, used and disclosed in aggregate form only and it will not contain personally identifiable information. We may use this aggregate information to analyze trends, administer the Service, track users’ movement, and gather broad demographic information for aggregate use.
We may collect data that is defined as Personally Identifiable Information (“PII”) by the U.S. Family Educational Rights and Privacy Act (“FERPA”). We’ll use that PII only for the purpose of fulfilling our responsibilities to deliver the Service, and will not monitor, share, or disclose any such PII to any third party except as provided for in these Terms, as required by law, or as authorized in writing by you (or your organization if used under a GoReact Enterprise agreement). You agree that de-identified data, from which all PII-qualifying identifiers have been removed in accordance with FERPA definitions, is not PII and may be used for lawful purposes.
Your User Submissions and other data, including PII, will be processed in the United States with the security protections outlined in these Terms.
GoReact has designed the Service to support various disabled accessibility standards, including Section 508 of the U.S. Rehabilitation Act as well as global Web Content Accessibility Guidelines (WCAG). For current accessibility support, please see goreact.com/compliance.
INTELLECTUAL PROPERTY OWNERSHIP; COPYRIGHT
The Service as well as GoReact names, trademarks, logos, content, designs, and other brand features (collectively “GoReact Property”) are protected by copyright, trademark, and other US and foreign laws. These Terms don’t grant you any right, title or interest in any GoReact Property or in others’ User Submissions. We welcome feedback; please note that we may use any comments or suggestions without any obligation to you.
We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using our DMCA Policy (located at goreact.com/dmca). We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Service is:
256 West Center St.
Orem, UT 84057
LINKS TO THIRD PARTY SITES
The Service may contain links to third party web sites (“Linked Sites”). GoReact has no control over these Linked Sites or their content, and you use them at your own risk. However, if you experience a problem with a Linked Site, please let us know at email@example.com so we can investigate and take appropriate action.
You’re free to stop using our Service at any time. We also reserve the right, as needed, to terminate these Terms, disable access to your Account, or suspend the Service at any time at our discretion and without notice. For example, we may suspend or terminate your use of the Service if you’re not complying with these Terms, or use the Service in a manner that would cause us legal liability, disrupt the Service, or disrupt others’ use of the Service. We may delete your Account, including all User Submissions, when you no longer use your Account or when we have disabled access to your Account or the Service. GoReact is not responsible to you nor to any third party for any termination of your access to the Service or deletion of User Submissions.
SERVICE PROVIDED “AS IS”
We strive to provide a great Service, but there are certain things that we can’t guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, GOREACT AND ITS AFFILATES, PARTNERS, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICE. THE SERVICE IS PROVIDED “AS IS.” WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF APPLICABLE LAW DOES NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN GOREACT GIVES THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY LIABILITY FOR GOREACT’S OR ITS AFFILIATES’ FRAUD, FRAUDULENT MISREPRESENTATION, OR GROSS NEGLIGENCE, IN NO EVENT WILL GOREACT, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR:
(A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR
(B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY.
THIS WILL BE REGARDLESS OF WHETHER OR NOT GOREACT OR ANY OF ITS AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ADDITIONALLY, GOREACT, ITS PARTNERS, AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE FOR MORE THAN THE GREATER OF $10 OR THE AMOUNTS PAID BY YOU TO GOREACT FOR THE PAST 4 MONTHS OF THE SERVICES IN QUESTION.
Some places don’t allow the types of limitations in this section, so they may not apply to you.
YOUR WARRANTY AND OBLIGATION TO INDEMNIFY GOREACT
By uploading content and User Submissions to the Service, you agree that you have: (a) all necessary licenses and permissions to use and share such content and User Submissions, and (b) the rights necessary to grant the licenses in these terms.
To the fullest extent permitted by applicable law, you will indemnify us and our subsidiaries, affiliates, officers, agents, employees, Partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to such content, User Submissions, your use of the Service or Software, or your violation of these Terms and any applicable laws.
Subject to limitations of applicable law and this section, GoReact will indemnify you from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of any claim by a third party against you to the extent based on an allegation that our technology used to provide the Service to you infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. Alternatively, we may choose to take action to rectify the alleged infringement. GoReact will have no obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by GoReact, and (ii) any content, information, or data provided by you or other third parties.
Subject to limitations of applicable law and this section, GoReact will also indemnify you from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of GoReact’s gross negligence or willful misconduct in preventing unauthorized access to confidential User Submissions, as finally determined in a non-appealable judgment by a court of competent jurisdiction in connection with a claim alleging a breach of confidentiality.
DISPUTES AND CONTROLLING LAW
We want to address your concerns without needing a formal legal proceeding. Before filing a claim against GoReact, you agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 30 days of submission, you or GoReact may bring a formal proceeding.
You and GoReact agree that any judicial proceeding to resolve claims relating to these Terms or the Service will be brought in the federal or state courts of Salt Lake County, Utah, unless otherwise required by applicable law of any other jurisdiction. Both you and GoReact consent to venue and personal jurisdiction in such courts.
These Terms will be governed by Utah law except for its conflicts of laws principles, unless otherwise required by applicable law of any other jurisdiction.
These Terms constitute the entire agreement between you and GoReact with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.
WAIVER, SEVERABILITY & ASSIGNMENT
GoReact’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. GoReact may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Service.
We may revise these Terms from time to time, and will always post the most current version on our website. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your Account or alerting you at your next login). By continuing to use or access the Service after the revisions come into effect, you agree to be bound by the revised Terms.
Posted: 21 November 2016
GoReact is committed to respecting and protecting the legal rights of copyright owners. As such, GoReact adheres to the following notice and take down policy, in full compliance with U.S. Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any portion of the Service (including any User Submissions) infringes upon your intellectual property rights, please submit a notification alleging such infringement hereafter a “DMCA Takedown Notice”).
To be valid, a DMCA Takedown Notice must (a) be provided to GoReact’s designated agent, (“Copyright Agent”), at the address below, and (b) include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
- Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, correspondence regarding online purchases or other communications should be directed to the applicable contact or service links posted on the Service. You acknowledge that in order for GoReact to be authorized to take down any content, your DMCA Takedown Notice must comply with all of the requirements of this DMCA Policy.
ATTN: Copyright Agent
256 W. Center St.
Orem, UT 84057
This Schedule 1 (“EU Data Clauses”) shall NOT apply to the Agreement unless expressly so indicated in a Customer Order Form referencing this Schedule 1, or otherwise expressly incorporated into the Agreement.
Commission Decision C(2010)593
Standard Contractual Clauses (processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
Name of the data exporting organisation: The Customer that is a party to the Agreement with GoReact
(the data exporter)
Name of the data importing organisation: SpeakWorks, Inc. d/b/a GoReact
Address: 256 W. Center Street, Orem UT 84057 USA
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
- ‘personal data‘, ‘special categories of data‘, ‘process/processing‘, ‘controller‘, ‘processor‘, ‘data subject‘ and ‘supervisory authority‘ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1;
- ‘the data exporter‘ means the controller who transfers the personal data;
- ‘the data importer‘ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- ‘the subprocessor‘ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- ‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- ‘technical and organisational security measures‘ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer2
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses3. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is (please specify briefly Customer’s activities relevant to the transfer):
The Customer to the Agreement with GoReact, whose Users will use the Service.
The data importer is (please specify briefly activities relevant to the transfer):
SpeakWorks, Inc. d/b/a GoReact, a cloud software provider that hosts the GoReact Service and processes and stores the relevant data related to the Service.
The personal data transferred concern the following categories of data subjects (please specify):
The data exporter and data exporter’s affiliates’ end users including instructors, students, employees, consultants and contractors of the data exporter, as well as any individuals collaborating or sharing with these end users using the services provided by data importer.
Categories of data
The personal data transferred concern the following categories of data (please specify):
Customer and end user identifying information as well as videos, documents, images, and other content in electronic form stored or transmitted by users via data importer’s Service.
The personal data transferred will be subject to the following basic processing activities (please specify):
Encryption during data transfer, secure storage, video re-encoding for playback optimization, and other activities as instructed by the data exporter in order to provide the Service under the Agreement.
APPENDIX 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data Privacy Contact
The data privacy officer of the data importer can be reached at email@example.com
The data importer has implemented and will maintain appropriate administrative, technical and physical safeguards to protect personal data as set forth below. The data importer may update these security measures from time to time, provided however that data importer will notify data exporter if data importer updates the security measures in a manner that materially diminishes the administrative, technical or physical security features described therein or in this Appendix 2.
Data security measures include:
- 100% private data access, controlled by the user
- 100% data and media encryption in every transmission
- Data encryption at rest
- Regular third-party security audit and penetration testing
- Background checking for all employees with access to data
- Storage and processing via EU compliant physical and electronic security through Amazon Web Services secure cloud. More information on AWS compliance here:http://www.cnpd.public.lu/en/actualites/international/2015/03/AWS/index.html
Appendix 3 to the Standard Contractual Clauses
This Appendix forms part of the Clauses. In order to ensure compliance with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”), the parties agree on the following:
1. Designation of a Data Protection Officer. The data importer shall designate a data protection officer in writing, who is able to perform his duties pursuant to the GDPR. The contact information of the data protection officer shall be notified to the data exporter for the purposes of contacting the data protection officer directly.
2. Term. This Schedule 1 shall remain in force for an indefinite term and may be terminated in accordance with the provisions of the Agreement. The data exporter shall, upon termination and by way of issuing an instruction, stipulate the measures to return data storage media or to delete stored personal data to the extent mandatory retention obligations do not conflict.
3. Confidentiality. The data importer shall ensure that any personnel entrusted with processing personal data have been obliged to maintain confidentiality of the data, and provide verification upon request; such obligation shall continue as long as the data importer holds personal data of the data exporter. The data importer shall make sure that such personnel will not process the personal data except on instructions from the data exporter.
4. Data breach notification to the Data Exporter. The data importer shall promptly notify the data exporter of any breaches on the part of the data importer or its employees or service providers of statutory data protection or contractually agreed regulations. The data importer ensures that it shall support the data exporter in fulfilling its duties under the applicable data breach notification laws, including required communication with the data subject. The data importer’s obligation to assist the data exporter with notifications to the supervisory authority and communications to the data subject according to this Schedule 1 shall remain unaffected.
5. Assistance in relation to subject’s rights. The data importer shall assist the data exporter by appropriate technical and organizational measures, taking into account the nature of the processing, for the fulfilment of the data exporter’s obligation to respond to rights to rectification, deletion or blocking or requests for exercising the data subject’s rights laid down in Chapter III of the GDPR; if a data subject should directly contact the data importer for the purposes of exercising the data subject’s rights, the data importer shall forward this request to the data exporter without delay.
6. Assistance with Ensuring Compliance with Art. 32 – 36 GDPR. Taking into account the nature of processing and the information available to the data importer, the data importer shall assist the data exporter in ensuring compliance with the obligations pursuant to Art. 32 – 36 GDPR, in particular with respect to the security of the processing, data protection impact assessments and consultation of supervisory authorities.
7. Information to Demonstrate Compliance with Data Protection Obligations and Inspections. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations resulting from this Schedule 1. The data importer agrees that the data exporter shall be authorized to check the compliance with the applicable data protection laws and this Schedule 1 to the extent necessary at any time during normal business hours.
8. Subprocessors. A list and description of data importer’s current data subprocessors may be found and reviewed any time at http://goreact.com/subprocessors. As required by clauses 5(h) and 11(1) of the EU Data Clauses, data importer will notify and provide opportunity for consent from data exporter in the event additional subprocessors are engaged.
9. Cross-border transfers of data. Data exporter understands that data exporter’s data may be processed in and transmitted to and from the United States, potentially via other third countries. In consideration of the above-described encryption, security measures, policies, and safeguards, data exporter expressly agrees to permit such cross-border transfers of its data.
- Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.
- Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, inter alia, internationally recognised sanctions, tax-reporting requirements or anti-money-laundering reporting requirements.
- This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision.