Wellington Engagement Index Terms of Use
Last modified: September 24, 2024
Wellington makes its Wellington Engagement Index software as a service, and any associated applications, deliverables or documentation, including without limitation:
www.wei.student.wellington.org, and
www. wei.wellington.org
the Wellington Engagement Index features, functionality and software available on or accessible through such websites (collectively, the "Software" or “Website”) available to student, district administrator, school administrator, and teacher end users (each a “User”, and “Student User”, “District Admin User”, “School Admin User” and “Teacher User”, respectively) at educational organizations and other entities (each a “Purchasing Organization”) that have subscribed to access to the Software pursuant to one or more order forms in the form made available by Wellington (each an “Order Form” and collectively, “Order Forms”).
These Wellington Engagement Index Terms of Use (the “Terms of Use”), including the Purchasing Organization’s applicable Order Form which by this reference is incorporated herein, is between The Wellington Initiative, LLC (“Wellington” or “Company”) and each registered User of the Software (“you” “your” or “User”). By accessing or using the Software, you agree to be bound by the terms and conditions set forth in these Terms of Use. Before you continue, you should read this document, as it forms a binding agreement between you and Wellington regarding your use of the Software.
1. Applicable Terms and Consent. Your use of the Software is also subject to, and you must abide by, the terms or conditions of the Order Form. In the event of any conflict between the terms of these Terms of Use and the terms of the Order Form, the terms of the Order Form shall control. The Software may not be used, either directly or indirectly, by you for (a) any commercial purpose or for the benefit of any commercial enterprise; or (b) for research or any other activity for which compensation of any kind will be received.
Without limiting the forgoing, in the event the Purchasing Organization is a school, the Software and the personal information of Users, may only be used for the use and benefit of the school, and for no other commercial purpose. The Purchasing Organization hereby provides consent to Wellington to collect, use, and otherwise process personal information provided by the Purchasing Organization, including without limitation its Users, or otherwise collected on or through the Software, in accordance with the Privacy Policy available at: Witools.org/documents and the Children’s Privacy Policy also available at Witools.org/documents. With respect to the collection and use of personal information of the Purchasing Organization’s Student Users under the age of 13, the Purchasing Organization may revoke such consent as set forth in the Children’s Privacy Policy.
2. WARRANTY DISCLAIMER . WELLINGTON PROVIDES THE SOFTWARE SOLELY ON THE TERMS SET FORTH IN THESE TERMS OF USE AND ON THE CONDITION THAT PURCHASING ORGANIZATION ACCEPTS AND PURCHASING ORGANIZATION AND EACH USER COMPLIES WITH THEM. PURCHASING ORGANIZATION ACCEPTS THESE TERMS OF USE ON BEHALF OF ITSELF AND EACH USER BY THE EARLIER OF THE PURCHASE OR USE OF THE SOFTWARE OR. BY PURCHASING ORGANIZATION’S ACCEPTANCE ON YOUR BEHALF BY ITS SIGNATURE AT THE TIME OF PURCHASE OR OTHERWISE THROUGH ITS OR YOUR MANIFIESTATION OF ASSENT TO THESE TERMS OF USE, YOU AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS OF USE; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE LOCATED IN THE UNITED STATES, AND IF YOU ARE A DISTRICT ADMIN USER, SCHOOL ADMIN USER, OR TEACHER USER, ARE 18 YEARS OF AGE, AND IF YOU ARE A PURCHASING ORGANIZATION, THAT ALL OF YOUR DISTRICT ADMIN USERS, SCHOOL ADMIN USERS, AND TEACHER USER ARE 18 YEARS OF AGE OR OLDER AND ALL OF YOUR USERS ARE LOCATED IN THE UNITED STATES, (II) IF USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF USER AND BIND USER TO ITS TERMS. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, WELLINGTON WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO USER AND YOU MUST NOT ACCESS OR USE THE SOFTWARE OR DOCUMENTATION (IF ANY).
THE SOFTWARE AND OTHER INFORMATION IS DELIVERED TO YOU AND EACH USER "AS IS" AND WITH ALL FAULTS. WELLINGTON DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU OR ANY USER MAY OBTAIN BY USING THE SOFTWARE. EXCEPT TO THE EXTENT ANY WARRANTY, CONDITION, REPRESENTATION OR TERM CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, WELLINGTON PROVIDES NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE PROVISIONS OF THIS SECTION AND SECTION 13 (LIMITATION OF LIABILITY) SHALL SURVIVE THE TERMINATION OF THESE TERMS OF USE, HOWSOEVER CAUSED, BUT THIS SHALL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE SOFTWARE AFTER TERMINATION OF THIS AGREEMENT.
3. Subscription Term/Payment. The term for which the subscription to use the Software is valid is set forth on the applicable Order Form signed by you or your Purchasing Organization (the “Subscription Term”). Access to the Software will terminate automatically if you fail to comply with the terms of these Terms of Use or any applicable Order Form. Any use of the Software after the term expires will violate the terms of these Terms of Use. All subscription fees are payable in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein. Any renewal of the subscription hereunder shall not be effective until the fees for such renewal have been paid in full. Any overage fees based on number of Users exceeding the subscription as set forth in the Order Form will be invoiced and payable within 30 days. Wellington reserves the right to discontinue the Software and related services at any time upon the expiration of your Subscription Term.
4. Compatibility/System Requirements . You acknowledge that the Software is intended to be used with modern browsers. Wellington makes no warranty or guaranty that the Software will function with your computer system or with all browsers. Use of the Software may require that you have certain third party hardware, operating systems and other supporting software, which must be installed and operating properly on your computer system in order for the Software to function (“Compatible System”). You are solely responsible for ensuring that the Software is used on a Compatible System, and you are solely responsible for payment of all required third party fees and compliance with applicable third party terms and conditions.
5. Updates. Wellington may, in its discretion, release updates or upgrades to the Software to add features, functionality or to maintain compatibility (“Updates”). Wellington has no obligation to provide any such Updates. Any Updates purchased from or otherwise provided by Wellington will be subject to the terms and conditions of Wellington’s then-current Terms of Use.
6. Taxes. Fees are exclusive of all sales, use and similar taxes which may be levied as a result of the subscription, which taxes shall be the responsibility of Purchasing Organization. If Purchasing Organization is exempt from any tax, Purchasing Organization shall promptly provide Wellington with a valid certificate of exemption.
7. Customer Input. You may provide feedback from time to time regarding Software operation, performance and functionality. You agree to report any issues with the Software that require error corrections or bug fixes. Wellington may freely use and incorporate into the Software any feedback, suggestions, or requests for improvements that you provide to Wellington.
8. Grant of Right of Access. Subject to your compliance with these Terms of Use and any applicable Order Form, Wellington grants to you a non-exclusive, non-transferable, non-sublicensable, limited right to access during the Subscription Term to access and use the Software via your Compatible System. Each User may access and use the Software in accordance with these Terms of Use and solely for Purchasing Organization’s internal purposes.
9. Restrictions . You will not, directly or indirectly: (i) sell, lease, loan, rent, distribute, license, sublicense or provide the Software or your access credentials, in whole or in part, to any third party; (ii) connect, integrate or incorporate the Software or any part thereof in, any other programs without Wellington’s prior written consent and use of approved APIs; (iii) decompile, disassemble, decode or reverse engineer the Software, in whole or in part, or otherwise attempt to derive, discover or gain access to the source code of the Software or any part thereof; (iv) modify, translate, adapt, or otherwise write, develop or create any derivative works or improvements, whether or not patentable, or any other software program based upon the Software; (v) provide, disclose, divulge or make available to, or permit use of the Software, in whole or in part, by any user (other than the registered user) without Wellington’s prior written consent; (vi) circumvent or disable any security or technological features or measures in the Software; (vii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software, including any copy thereof; or (viii) use (including make any copies of) the Software beyond the scope of the rights granted herein. The subscription does not include any rights to the Software source code or any downloadable copies of the code.
10. Intellectual Property. As between you and Wellington, the Software is and shall remain the sole property of Wellington. The structure, organization and code of the Software, as well as the graphic user interface and look and feel of the Software are the valuable intellectual property of Wellington. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, these Terms of Use do not grant you any intellectual property rights in or to the Software and all rights not expressly granted are reserved by Wellington.
11. Responsibility for Use of the Software/Indemnification. You agree that you are responsible for your and your Users’ conduct while using the Software, and for any consequences thereof. You are also responsible and liable for all uses of the Software and documentation through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Software and documentation by any other person to whom you may provide access to or use of the Software and/or documentation, whether such access or use is permitted by or in violation of these Terms of Use. You further agree to use the Software only for purposes that are legal, proper and in accordance with these Terms of Use and any applicable policies or guidelines Wellington may make available. You agree to defend and indemnify Wellington and hold Wellington harmless from all claims, losses, damages, complaints, or expenses, including but not limited to attorneys’ fees, connected with or resulting from your use of the Software or failure to comply with these Terms of Use.
12. Collection and Use of Information. You acknowledge and agree that Wellington and its service providers and contractors may, directly or indirectly through the services of third parties, collect, store, and otherwise process information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, though: (a) the provision of maintenance and support services (to the extent there are any), (b) security measures included in the Software (to the extent there are any), and (c) the hosting of the Software. You agree that Wellington may use such information to the extent consistent with the Privacy Policy located at Witools.org/document and Children’s Privacy Policy also located at Witools.org/document as applicable, for any purpose related to research and publication including the publication of books and other materials and media containing other information, excepting personal information, and without limitation any use of the Software by you, including but not limited to: (i) improving the performance of the Software or developing Updates, and (ii) verifying User compliance with the terms of these Terms of Use or an applicable Order Form and enforcing Wellington’s rights, including all intellectual property rights in and to the Software, and all other actions with respect to information consistent with the Privacy Policy located at Witools.org/document and Children’s Privacy Policy also located at Witools.org/document . You represent that you have and will secure and maintain all rights in the data and other information and materials you and your Users provide or otherwise make available, necessary for us to provide the Software to you and your Users without violating the rights of any User or third party or otherwise obligating Wellington to you, or to any User or third party. Without limiting the forgoing, in the event you utilize out API or any other portion of the Software or otherwise transfer information, including without limitation Personal Information, you represent you have all rights necessary in and to such personal information to make such personal information available to Wellington and each third party and otherwise to process and enable the processing of such personal information. Wellington does not and will not assume any obligations with respect to data and other information and materials you and your Users provide or otherwise make available or to your use of the Software. You represent that you have and will continue to conduct all assessments with respect to personal information, children, profiling, consequential decisions, fundamental rights, and otherwise as required by applicable law. Without limiting your forgoing representations, y ou represent that you, your processors and other parties you utilize to make information available to Wellington or otherwise on or through the Software are and shall remain in compliance with all applicable laws, rules, and regulations.
13. Limitation of Liability . IN NO EVENT WILL WELLINGTON OR ITS AGENTS OR AFFILIATES BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING WITHOUT LIMITATION ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, BUSINESS INTERRUPTION OR ANY LOST PROFITS OR LOST SAVINGS, OR LOSS OF DATAEVEN IF A WELLINGTON REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, OR CLAIMS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY, WELLINGTON’S AGGREGATE LIABILITY AND THAT OF ITS AGENTS OR AFFILIATES UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR THE SOFTWARE OR USE THEREOF SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY, TO WELLINGTON BY THE APPLICABLE PURCHASING ORGANIZATION, IN THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. WELLINGTON’S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
14. Export Restrictions/U.S. Government Rights . You shall not, directly or indirectly, export or transmit the Software to any country, including without limitation to any country to which such export or transmission is prohibited by any applicable United States or foreign, regulation, statute, or other law. In addition, if the Software is identified as an export controlled item under applicable export laws, you represent and warrant that you are not a citizen of, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise prohibited under export laws from receiving or otherwise accessing and using the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of these Terms of Use.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the User is the US Government or any contractor therefor, User shall receive only those rights with respect to the Software and documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
The owner of the Software is based in the state of Ohio in the United States. Wellington provides the Software for use only by persons located in the United States. Wellington makes no claims that the Software or any of its content is accessible or appropriate outside of the United States. Access to the Software may not be legal by certain persons or in certain countries. If you access the Software from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. You may not access or otherwise use the Software from outside the United States. Wellington makes no representations, warranties, or claims regarding the compliance of the Website, or any use thereof, with EU or other foreign country privacy or data security laws. Wellington does not desire to process personal data of data subjects outside of the United States and does not otherwise intend to offer goods or services to or monitor the behavior of data subjects outside of the United States. You represent and warrant that neither you nor your Users will provide or otherwise make available to Wellington, personal data of an identified or identifiable person outside of the United States. For the purpose of this paragraph, an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as, without limitation, a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. For the purpose of this paragraph, personal data shall mean any information relating to an identified or identifiable natural person.
15. Non-assignment/Binding Agreement. You may not assign or otherwise transfer these Terms of Use, in whole or in part, without the prior written consent of Wellington. Subject to the foregoing, these Terms of Use will bind and benefit the parties and their respective successors and permitted assigns.
16.Choice of Law. These Terms of Use, performance hereunder and all matters arising out of or related to these Terms of Use and the Software shall be governed by and construed in accordance with the laws of the state of Ohio, without regard to any conflict of law provisions which would result in the application of law other than the foregoing. Courts located in Columbus, Ohio shall have exclusive jurisdiction and venue of any action arising out of or related thereto. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, shall be excluded. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY.
17.Notices. Any notice required or permitted under these Terms of Use shall be given in writing and shall be sent by confirmed e-mail to your address provided at registration or to Wellington at laughlin@wellington.org . You are responsible for ensuring we have an up-to-date active and deliverable email address for you.
18.Entire Agreement. These Terms of Use and the applicable Order Forms constitute the complete and exclusive agreement between Wellington and User with regard to the Software and their subject matter, and supersede all prior or contemporaneous agreements, understandings, discussions or representations and may not be modified or amended except in a writing signed by Wellington and User. Any waiver of a party’s rights or remedies must be in writing to be effective.
19. Applicability to Purchasing Organization . Purchasing Organization acknowledges and agrees that its purchase and access to the Software is governed by these Terms of Use, as referenced in the applicable Order Form. The terms “you” “your” and “User” shall be construed to include Purchasing Organization. Purchasing Organization is responsible for its Users’ use of the Software and shall be responsible for such Users’ compliance with these Terms of Use. Purchasing Organization agrees to defend and indemnify Wellington and hold Wellington harmless from all claims, losses, damages, complaints, or expenses, including but not limited to attorneys’ fees, connected with or resulting from its User’s use of the Software or failure to comply with these Terms of Use.