Date of Last Revision: March 22, 2012
Revisions: On March 22, 2012 we:
Populi, Inc (“We”, “Us”, “Our”, etc.) provides its Service (as defined in Section 2, below) through the website located at https://institutiondomain.populiweb.com (the “Site”) to the Institution and all users who access the Site (“You”, etc.) subject to these Terms of Service (“TOS”). If You are entering into this TOS on behalf of an Institution or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these TOS, in which case the terms “You” or “Your” may also refer to such entity and its affiliates. If You do not have such authority, or if you do not agree with these TOS, You must not accept these TOS and may not use the Service.
You acknowledge that you have read, understood, and agree to be bound by these TOS; that these TOS, together with any other contracts or agreements between You and Us, constitute the entire agreement (“Agreement”) between You and Us; and that such governs your use of the Service. Where these TOS directly conflict with any other written contracts or agreements executed between You and Us, the provisions of such Agreement shall take precedence over the provisions of these TOS.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
Your acknowledgment is made either by accepting these TOS, by accessing or using the Service, or by signing either the Information Management Services Agreement or Implementation Agreement (the “Agreements”).
Populi may change these TOS from time to time without prior notice. You can review the most current version of these TOS at any time by clicking the “Terms of Service” link on the Site or by checking http://www.populiweb.com/terms. The revised TOS will become effective upon posting. If You use the Service after that date, we will treat your use as acceptance of the revised TOS. If any change to these TOS is not acceptable to You, Your only remedy is to stop accessing and using the Service.
Our election to not exercise or enforce any right or provision of these TOS shall not be a waiver of that right.
All elements of the “Service” are subject to the TOS. The Service includes:
We reserve the right to modify or discontinue, temporarily or permanently, the Service (or any part or feature thereof).
For Your staff and/or employees, “Customer Support” includes:
For Your students, “Customer Support” includes:
“Customer Support” does not include:
We reserve the right to refer any support request received from Your students back to one of Your employees. You shall not distribute the Populi Customer Support phone number or the phone numbers of any Populi employee to Your students.
Populi connects with certain “Optional Services” that supplement the Service. Such Optional Services are not included under the Service Description, nor do these TOS obligate You to use them.
You understand and acknowledge that:
You understand that the processing and transmission of the Service, including your content, but not including credit card information transmitted using the Service’s credit card processing features, may be transferred unencrypted and involve:
We do not warrant, nor are we responsible for, the quality, integrity, security, and condition of any intermediary networks, devices, or services used to connect any of your logins with the infrastructure required to run the Service.
You are welcome to submit feature requests, ideas, and other suggestions to us concerning improvements to the Service. We make no guarantees that We will respond to Your requests, nor that We will design, build, or implement into the Service any features or ideas arising from such requests. When We do incorporate requested features into the Service, You shall not be entitled to any remuneration, discount, or any other kind of benefit beyond the enhancement of the Service.
Account Admins may download a copy of Your Academic and Financial Data using the functions provided in the “Backups” tab of the “Account” section of the Site.
Periodically, We will make new and/or upgraded feature(s) available to You through the Service. You acknowledge that such features may be initially released in “beta” mode and may remain so for an indeterminate time. If appropriate and necessary, upon release of such features, We and You shall make arrangement for the secure transfer of any of Your data applicable to the new feature(s). We shall not charge You for the release of, nor for the transfer of your data to, the new feature(s).
The Institution (as named in either of the Agreements) is solely responsible for the maintenance of its instance of the Service. Individual users at the Institution (“Users”) access and use the Service through the Institution’s instance of the Service. If the Institution is delinquent in its maintenance of or cancels or terminates its instance of the Service, the Users shall be unable to access and use the Service.
Subject to the terms and conditions of these TOS, You may access and use the Service for its intended purposes at Your sole risk. As to “Prohibited Uses”, You shall not:
All rights, title and interest in and to the Service, its software code, and all of its other components will remain with and belong exclusively to Us, subject only to the limited right to use and access the Service expressly granted to You under these TOS. You shall not modify, adapt, or hack the Service to falsely imply any sponsorship or association with Us, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
We make no claim of ownership, right, title, or interest in or to Your Content.
We grant You the non-exclusive and non-transferable right to access and use the Service within the User Role(s) granted you in the Service (“Role” or “Roles”). This right is limited by these TOS.
All users must maintain a “third-party email address” to which We can send notifications related to the Service. A third-party email address is any email address that is not directly accessed through the Service nor is dependent on the Service to authenticate the user. For example, a Google Apps email address created through the Service is not a third-party email address.
Additionally, You are fully responsible for:
We cannot and will not be held liable in any way for loss or damage resulting from Your failure to comply with these responsibilities.
We are not responsible for any lack or diminishment of functionality, usefulness, accessibility, or clarity of the Service or your Content arising out of Your not using, or Your improper use of, the Service or any of its individual features.
By uploading images, content, and other information to Populi’s Bookstore features, you agree to allow other internet users to view them without a login. You agree that We may display and store them and review all such content submitted by You, at any time.
You agree and acknowledge that User logins may only be used by one (1) person. A person is a human. Multiple people shall not be permitted to access or use the service through a single, shared login. You may create separate logins for as many people as are necessary for the effective operation of the Institution. You shall not create a login for any representative(s) of any competing software distributor or vendor.
We reserve the right to maintain our own logins on the Site in order to assist with Your support requests.
We reserve the right to suspend any User login or account if we suspect that User of hacking or attempting to hack the Service or for violation of these TOS.
We reserve the right to use the contact information stored in the Service to contact Users directly.
We may, but have no obligation to, remove Content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violates any party’s intellectual property or these TOS.
You agree to indemnify, defend, and hold Us harmless for any and all unauthorized uses you make of the Site or Service. You acknowledge that the unauthorized use of the Service could cause irreparable harm to Us and that in the event of an unauthorized use, We shall be entitled to an injunction in addition to any other remedies available at law or in equity.
Unauthorized uses include, but are not limited to, the following:
Your instance of Populi shall be considered “implemented” upon the creation and activation of Your unique Populi website.
You acknowledge that any materials or resources We make available to You, or communications from Us, regarding implementation or data import reflect Our experience and knowledge of Populi and the processes relating to implementation or data import, and thus shall govern Your expectations of how implementation and data import shall proceed.
Upon implementation, You shall be responsible for managing Your data via the Service.
You may request that We import Your “Legacy Data” into Populi during the initial implementation process. In that event:
Populi and its various logos used or displayed on the Service are Our trademarks. You may only use these trademarks or logos for promotional purposes to identify Yourself as a customer or user of the Service, provided you do not attempt to claim ownership of the marks by incorporating any of them within Your names or offerings. We reserve the right of approval over all such uses of Our trademarks and logos.
All content posted on the Service must comply with U.S. copyright law. Our full copyright compliance policy may be found at http://www.populiweb.com/copyright.
The Service is made available on the following pricing and payment terms:
During account setup, you shall choose one of Our published pricing plans (“Plan” or “Plans”). Our Plans are published at http://www.populiweb.com/pricing. Each Plan consists of a monthly “Base Rate”, a monthly per-Active Student rate (“Student Price”), an allotment of free “File Storage”, and a certain number of free “SMS Messages”.
Account Admins and Billing Contacts may view Your Plan or request to change Your Plan at any time according to the instructions provided in the “Payment Settings” tab of the “Account” section of the Site.
You shall be required to pay the “Base Rate” for every month We provide you with access and use of the Service beginning as of the “Effective Date” named in Your Implementation Agreement.
You shall be subject to the “Student Price” as soon as Your instance of Populi is implemented.
To determine the Student Price, on the first day of every calendar month We shall determine the number of Your Active Students (“Student Count”) from the previous month and multiply the Student Count by Your selected Plan’s Student Price.
“Active Students” are Your full-time, part-time, and auditing students who are enrolled in at least one of Your courses for seven (7) or more calendar days in a given calendar month, or in courses that last for seven or fewer calendar days. Without exception, we do not distinguish between “real” students and “fake”students You create for testing purposes.
Each Plan includes a certain amount of “File Storage”. File Storage includes storage of electronic files uploaded to the Service and files created on your behalf by the Service. In the event that You exceed Your Plan’s allotment of free File Storage, We shall include a pro-rata “File Storage Charge” according to Our then-current published File Storage rates.
Each Plan includes a certain number of monthly “SMS Messages”. SMS Messages are messages sent via the Emergency Notification feature to Your Users’ active SMS notification numbers (as specified in their user account’s personal Settings). Each SMS Message is good for one (1) SMS per individual recipient. For example, if You send one SMS to 100 recipients, that counts as 100 SMS Messages. In the event that You exceed Your Plan’s allotment of included SMS Messages, We shall include an “SMS Charge” according to Our then-current published SMS Message rates.
SMS Messages do not roll over from one month to the next.
A three-percent (3%) “Late Fee” shall be added to all overdue, unpaid invoices. Any fees or other penalties incurred by Us because of Your late payment, insufficient funds, or any other such reason shall be added to Your next invoice (“Penalties”).
We shall electronically issue to You invoices for the sum of the Base Rate, Student Price, any File Storage Charges, any SMS Charges, and any Late Fees or Penalties. You shall pay via Automated Clearing House (“ACH”) or e-check on or before the “Due Date” shown on Your invoice.
Without exception, there shall be no refunds, prorations, or credits for any partial months of service or for months of service in which You change Your Plan.
Plan Prices are subject to change upon 90 days notice from us. Such notice may be provided at any time.
We use a third-party intermediary to manage Automated Clearing House (“ACH”) processing. This intermediary is not permitted to store, retain, or use your billing information except to process your ACH information for Us. Please review our Privacy Policy or visit http://www.populiweb.com/privacy to understand how we collect and use any personal or private information.
All prices are stated in US Dollars, and are exclusive of all federal, state and local excise, sales, use, and other taxes. Any applicable state, local, or other jurisdiction taxes are Your responsibility. All payments must be made to Us in US Dollars only. Any bank or other fees incurred for conversion into US Dollars are Your responsibility.
If You wish to dispute any of the charges on Your invoice, you must inform Us of such dispute before the Due Date shown on that invoice. Please inform Us of such disputes by contacting Populi Customer Support via email.
You may cancel Your use and instance of the Service at any time by notifying Us in writing (“Cancellation”). Such notice of Cancellation must contain the date you wish to terminate the Service (“Cancellation Date”). Upon the Cancellation Date described in such notification notice, We will begin terminating Your instance of the Service. We will deactivate the Site and all associated services and support. At such time, You will no longer be able to use or access the Service or any of Your data stored or maintained through the Service.
The calendar month in which the Termination Date falls shall be billed as a full month of service.
You are fully responsible for downloading your data, files, and other Content from the Service before the Termination Date.
We reserve the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) and refuse You any and all current and future use of the Service, including suspension or termination of Your use of the Service for any reason. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service may be referred to appropriate law enforcement authorities. We shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
If either Party (You or Us) defaults in the performance of its material obligations and such default continues after written notice to that Party for a period of sixty (60) Business Days, then the non-defaulting Party may terminate this Agreement by providing the defaulting Party written notice of termination.
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
You acknowledge and understand that We do NOT currently allow You to access any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Service is not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services.
You acknowledge and understand that SMS Messages sent via the Service can only be delivered to mobile numbers on U.S. and Canadian carriers.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU, THE INSTITUTION, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION ARISING OUT OF THE SALE OR USE OF POPULI OR ANY OF THE FOLLOWING:
WE SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OR LIABILITIES IN EXCESS OF THE AMOUNT THAT HAS BEEN PAID US BY INSTITUTION. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
In states which do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, some of the above limitations may not apply to You. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You will defend, indemnify, and hold harmless Us, Our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Your use of the Service (including any activities under Your account or Instance); (b) Your breach of this Agreement or violation of applicable law; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between You and any User. If We or Our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, You will also reimburse Us for reasonable attorneys’ fees, as well as Our (or Our contractors’) time and materials spent responding to such at Our then-current hourly rates.
We will promptly notify You of any claim subject to the above conditions. Our failure, if any, to promptly notify You will only affect Your obligations under above conditions to the extent that Our failure affects Your ability to defend the claim. You may: (a) use counsel of Your own choosing (subject to Our written consent) to defend against any claim; and (b) settle the claim as You deem appropriate, provided that You obtain Our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
This Agreement, and any rights and licenses granted herein, may not be transferred or assigned by You, but may be assigned by Us without restriction.
These TOS shall be governed by the laws of the State of Idaho without regard to the principles of conflicts of law. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Idaho for the purpose of resolving any dispute relating to your access to or use of the Service.
