Terms of Service
SERVICE TERMS AND CONDITIONS
Effective Date: September 25, 2013
THE ORDER FORM(S) OF GINKGOTREE INC. (“GINKGOTREE” OR “WE”, “US”, “OUR”, OR SIMILAR DESIGNATIONS) AND THESE SERVICE TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND GINKGOTREE CONCERNING YOUR USE OF THE PLATFORM AND SERVICES. BY ORDERING OR OTHERWISE USING THE PLATFORM AND SERVICES, YOU AGREE TO AND ACCEPT THIS AGREEMENT, INCLUDING THE SPECIFIC LIMITATIONS SET FORTH IN SECTIONS 2, 3, 5, 6, AND 11-13. YOU MAY USE THE PLATFORM AND SERVICES ONLY IN ACCORDANCE WITH THIS AGREEMENT. NO OTHER CONTRACT OR TERMS CONCERNING THE PLATFORM OR SERVICES MAY BE CREATED IN ANY OTHER MANNER, INCLUDING BY MEANS OF YOUR PURCHASE ORDERS OR SIMILAR DOCUMENTS (EVEN IF SIGNED OR ACKNOWLEDGED BY GINKGOTREE), WHICH SHALL NOT MODIFY OR AMEND THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, YOU SHALL NOT BE ENTITLED TO USE THE PLATFORM AND SERVICES.
1.1 The Platform and Services may be ordered by individual Instructors for use by them and their Students, or may be ordered by institutions of higher education for multiple Instructors and their Students. If an institution of higher education is ordering the Platform and Services for multiple Instructors, the terms “you” or “your” refer to such institution of higher education ordering the Platform and Services as provided in the Order Form(s). If an individual Instructor is ordering the Platform or Services directly to use with their Students, the terms “you” or “your” refer to such Instructor as provided in the Order Form(s). All terms applicable to institutions of higher education are applicable to Instructors who are ordering the Platform directly unless the context requires otherwise. Where an individual Instructor is ordering the Platform directly, such Instructor shall also serve as their own Administrator. 1.2 “Platform” means the currently available Ginkgotree e-reading platform which allows, among other things, the creation of digital coursepacks by Instructors to supplement their educational courses, access to such digital coursepacks by Students enrolled in such courses, and related services and features, and any additions, modifications, or enhancements thereto. 1.3 “Services” means Ginkgotree’s services to you, if any, as provided in the Order Form(s), which may include administrative setup, administrative and instructor training, system and/or Learning Management System (LMS) integration, data storage, customization, and other such services as agreed between the parties. 1.4 The term “user” means any user of the Platform, including Administrators, Instructors, and Students, who are authorize to enroll to use the Platform under the terms of this Agreement and Ginkgotree’s end user license agreement located at http://www.ginkgotree.com/eula (the “EULA”). 1.5 “Documentation” means any guides, instructions, policies, FAQs, and reference materials provided to you or your users by Ginkgotree in connection with use of the Platform, Services, and related services, including the Documentation located at https://www.ginkgotree.com/docs, which may be amended by Ginkgotree from time to time. 1.6 “Order Form(s)” means the order forms or other forms from Ginkgotree (submitted in written form or online) evidencing the initial order for the Platform and Services, and any subsequent order forms or other forms from Ginkgotree, specifying, among other things, the initial term, the number of authorized users, Services (if any) to be provided, the applicable fees, and such other charges and terms as agreed between the parties. Capitalized terms in the Oder Form(s) not otherwise defined in the Order Form(s) are as defined in these Service Terms and Conditions. 1.7 “Instructors” means instructors, professors, faculty, and staff authorized to enroll for an Instructor Account on the Platform, under the terms of this Agreement and the EULA, to have access to the features and services available on the Platform for instructors. 1.8 “Students” means those users designated by you as students authorized to enroll for a Student Account on the Platform, under the terms of this Agreement and the EULA, to have access to the features and services available on the Platform for students. 1.9 “Administrators” means those users designated by you as administrators who are authorized to enroll for an Administrator Account, under the terms of this Agreement and the EULA, to have access to the features and services available on the Platform for Administrators. 1.10 “Content” means all digital content included in the digital coursepacks made available on or through the Platform, including digital textbooks, documents, photographs, video, webpages, and other digital educational resources. Content may include Content uploaded by or at the direction of a user (“User Content”) or Content provided by Ginkgotree, which Ginkgotree in turn receives from third-party licensors for use in connection with the Platform subject to a license agreement between Ginkgotree and such third-party licensors (“Licensed Content”). 1.11 “Data” means information that is not intentionally made generally public by you which is gathered by Ginkgotree in connection with the use of the Platform. Data may include all personally identifiable information of Instructors, Students, and Administrators; user account information, and user activity on the Platform, including user login and logoff; user location information (city and state by IP address); user comments on the Platform; and other usage data. 1.12 “Initial Term” means the initial period during which in the Platform shall be made available to you and your users. Unless a different term is specified in your Order Form(s), the Initial Term shall be for a period of one year.
2. PLATFORM LICENSE AND RESTRICTIONS.
2.1 Ginkgotree hereby grants you and your users a limited, personal, non-exclusive, non-transferrable, non- assignable, terminable license to internally use the Platform during the Initial Term and any renewal term for personal, educational, and noncommercial purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Ginkgotree. 2.2 Neither you nor your users shall: (i) modify, disassemble, decompile or reverse engineer the Platform, except to the extent that such restriction is expressly prohibited by law; (ii) share, rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Platform to any third party or use the Platform to provide time sharing or similar services for any third party; (iii) make any copies of the Platform or Content; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Platform, features that prevent or restrict use or copying of any Content accessible through the Platform, or features that enforce limitations on use of the Platform or Content; (v) delete the copyright and other proprietary rights notices on the Platform or Content; (vi) integrate the Platform or Content with any other software except as provided in the Documentation; or (vii) engage in any fraudulent or illegal activity, violate any laws or third party rights, or violate the policies and procedures contained in the Documentation. 2.3 You and your users may use the Platform only for its intended purpose and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; or (v) attempt to gain unauthorized access to the Platform or its related systems or networks. 2.4 You and your users are individually responsible for all activity occurring under your user accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with your use of the Platform. You shall: (i) notify Ginkgotree immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Ginkgotree immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by you or your users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Platform. 2.5 You acknowledge and agree that your users of the Platform shall each be subject to the EULA. GINKGOTREE RESERVES THE RIGHT TO DISABLE ANY USER’S USE OF OR ACCESS TO THE PLATFORM WITHOUT NOTICE IF IT REASONABLY BELIEVES, IN GOOD FAITH, THAT SUCH USER’S USE OF OR ACCESS TO THE PLATFORM IS IN FURTHERANCE OF SOME PROSCRIBED PURPOSE OR SCHEME OR A VIOLATION OF THIS AGREEMENT OR THE EULA.
3. CONTENT LICENSES.
3.1 Ginkgotree hereby grants you and your users a limited, personal, non-exclusive, non-transferrable, non- assignable, terminable license to, subject to additional terms and conditions specified by each third-party licensor, to use the Licensed Content in connection with the Platform for personal, educational, and noncommercial use in accordance with the terms of this Agreement and the EULA. Without limiting the generality of the foregoing, Licensed Content licensed from the Copyright Right Clearance Center is subject to their Academic Pay-Per-Use Services (formerly APS and ECCS) Terms and Conditions located at http://www.copyright.com/viewPage.do?pageCode=i21 3.2 You and/or your users, as the case may be, own all User Content uploaded to the Platform. For User Content protected by intellectual property rights, you and/or your users, as the case may be, grant Ginkgotree a non- exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the User Content in connection with the Platform. Your right to use the User Content of other users of the Platform is subject to this same license. This license ends when you or your users delete such User Content from the Platform or this Agreement terminates. When you or your users delete User Content, such User Content may persist in backup copies for a reasonable period of time (but will not be available to others). When you or your users upload User Content to the Platform, the Platform may ask you or your users to certify that you have the right to upload and use such User Content, and further that you have the right to grant the license in this Section 3.2. Neither you nor your users shall post User Content or take any action on the Platform that infringes or violates someone else’s rights or otherwise violates the law. We reserve the right to disable any user account which repeatedly violates the intellectual property rights of third parties. We also reserve the right to remove any User Content or information you or your users post on the Platform if we believe that it violates this Agreement.
Ginkgotree shall provide the Services, if any, to you as provided in your Order Form(s). Unless otherwise noted, all service fees are included with the service fees indicated on your Order Form(s). Any additional Services are subject to Ginkgotree’s standard hourly rates for such Services (minimum 4 hour charge). Please see the Documentation for details.
All right, title, and interest in the Platform, including, without limitation, all patents, copyrights, trade secrets, and other proprietary rights in the Platform shall at all times remain solely and exclusively the property of Ginkgotree (or its licensors, where applicable), whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Platform is used or licensed. Ginkgotree shall further own all right, title, and interest in any copy, translation, modification, adaptation, enhancements or derivation of the Platform, even if developed or recommended by you. You shall not take any action that jeopardizes Ginkgotree’s proprietary rights or acquire any rights in the Platform. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Platform, or the intellectual property rights owned by Ginkgotree. Except as specifically provided in Section 2 above, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights are granted by Ginkgotree to you. Ginkgotree’s name, logo, and the product names associated with the Platform are trademarks of Ginkgotree or third parties, and no right or license is granted to use them.
6. PROPRIETARY MARKS.
Except as specifically authorized by Ginkgotree in writing, you shall not alter, change or remove from the Platform any trademark, other proprietary mark or proprietary rights notice.
Ginkgotree does not own any Data and does not share any Data with any third-party except as expressly provided in this Agreement or as required by law. Upon your request, Ginkgotree shall make a copy of the Data available to you. Ginkgotree reserves the right to retain a copy of the Data for archival purposes and to use the Data for internal purposes only.
Ginkgotree provides limited customer support to you and your users. Standard support hours are Monday-Friday from 9 a.m. to 5 p.m. Eastern Time daily via e-mail (firstname.lastname@example.org), with integration, training, and consulting services available separately. Ginkgotree has no obligation to provide additional services or upgrades, modifications, or new releases to the Platform under this Agreement. Ginkgotree may voluntarily provide some or all of these items; should Ginkgotree do so, any such action shall not be considered a waiver of this provision.
9. FEES AND PAYMENTS.
9.1 Service Fees. You shall pay Ginkgotree for the Services (“Service Fees”) as provided in your Order Form(s). You shall make all payments for Service Fees to Ginkgotree within thirty (30) days of the invoice date or as otherwise provided in your Order Form(s). Late payments shall incur interest equal to the lesser of (a) one and one- half percent (1.5%) per month, or (b) the maximum amount allowed by law. 9.2 Platform/Subscription Fees. At your election, as provided in your Order Form(s), either you will pay Ginkgotree for the user subscriptions (“Subscription Fees”) or each individual user shall pay for their own Subscription Fees. If you elect to pay all Subscription Fees, you shall make all payments for Subscription Fees to Ginkgotree within thirty (30) days of the invoice date or as otherwise provided in your Order Form(s). Late payments shall incur interest equal to the lesser of (a) one and one-half percent (1.5%) per month, or (b) the maximum amount allowed by law. If you elect to have each individual user pay for their own Subscription Fees, each user will be required to pay in advance, typically by credit card or other online payment method. Ginkgotree reserves the right to modify its Subscription Fees and to introduce new charges at any time, upon at least 30 days prior notice to you or your users, which notice may be provided by email, and which shall be effective as to any renewal term. All pricing terms are confidential, and you agree not to disclose them to any third party. 9.3 Payment Terms. All amounts are stated and payable in U.S. Dollars and do not include taxes. If Ginkgotree is required to pay taxes in connection with this Agreement, including without limitation sales, use, GST, value- added, or other taxes (excepting taxes based on income), such taxes will be invoiced to and paid by you. Ginkgotree reserves the right to modify the procedures used for invoicing/paying the Service Fees, as well as changing the Service Fees due. Ginkgotree shall provide you with at least thirty (30) days written notice prior to making any changes to the payment procedures or the amount of Service Fees due for subsequent contract terms. 9.4 You agree to provide Ginkgotree with complete and accurate billing and contact information. This information includes the legal name of your Institution, street address, email address, and name and telephone number of an authorized billing contact and your contracts administrator. You agree to update this information within 30 days of any change to it. 9.5 If you believe your invoice is incorrect, you must contact Ginkgotree in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. TERM AND TERMINATION.
10.1 Term. This Agreement shall become effective on the date referenced in your Order Form(s) and shall remain in effect for a period of one (1) year, unless another period is referenced in your Order Form(s) or unless terminated earlier pursuant to Sections 10.2 or 10.3 below. Upon the expiration of the initial term, this Agreement will automatically renew for successive one-year terms at Ginkgotree’s then current Subscription Fees. 10.2 Termination for Convenience. Either party may terminate this Agreement, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the term. 10.3 Termination for Cause or Default. Either party may terminate this Agreement immediately upon written notice if the other party ceases to do business or (i) becomes insolvent, admits insolvency or admits a general inability to pay its debts as they become due; (ii) files a petition for protection under the bankruptcy laws of any jurisdiction; or (iii) an involuntary petition in bankruptcy is filed against such other party and is not dismissed within thirty (30) days thereafter. You may also terminate this Agreement if Ginkgotree fails to perform a material obligation hereunder and fails to cure such nonperformance within twenty (20) days following written notice thereof. Ginkgotree may also terminate this Agreement if you fail to perform a material obligation hereunder (without notice or an opportunity to cure); provided that, any breach of the restrictions in Section 2 of this Agreement by you, or any breach of your payment obligations shall be deemed a material breach of this Agreement. 10.4 Effect of Expiration/Termination. No refund of Fees shall be due in any amount on account of a termination by you under Section 10.2 or by Ginkgotree under Section 10.3 of this Agreement. However, in the event a refund of Fees are due, these shall be prorated to reflect the period during which you were able to make use of the Platform and Services. When this Agreement expires or terminates, Ginkgotree shall cease providing the Platform and Services to you.
11. WAIVER; DELAYS.
EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 12, THE PLATFORM AND SERVICES ARE DISTRIBUTED AND PROVIDED “AS IS” WITHOUT ANY WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GINKGOTREE SPECIFICALLY DISCLAIMS ANY WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This waiver of warranty affects your specific legal rights; you may have rights which may vary depending upon where you are located. Some jurisdictions do not allow limitations on implied warranties, so the limitations above may not apply to you. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GINKGOTREE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12. LIMITED WARRANTY AND INDEMNIFICATION.
Ginkgotree represents and warrants that the Platform will perform substantially in accordance with the Documentation; that it has the legal right to grant the licenses granted herein, including without limitation the license to any third party software or Licensed Content; and that the Platform does not contain any known viruses. Ginkgotree agrees to defend you and your users from and against any third party claim or action based on any alleged infringement of any United States patent, copyright, trade secret, or other proprietary right as a result of the use of the Platform according to the terms and conditions of this Agreement, and Ginkgotree agrees to indemnify you and your users from any damages awarded against you in any such infringement claim or action or settlement thereof; provided, however, that (i) Ginkgotree is promptly notified in writing of such claim, (ii) you grant Ginkgotree sole control of the defense and any related settlement negotiations, and (iii) you cooperate with Ginkgotree in defense of such claim. Notwithstanding the foregoing, Ginkgotree shall have no obligation to indemnify you or your users under this Agreement in the event the third-party infringement claim arises from your own infringing activity or that of another user.
13. LIMITATION OF LIABILITY.
EXCEPT FOR GINKGOTREE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GINKGOTREE (AND ITS LICENSORS OR SUPPLIERS) SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE PLATFORM, HOWEVER SUCH DAMAGES ARISE AND/OR WHETHER SUCH DAMAGES ARE CLAIMED IN TORT, CONTRACT OR OTHER ACTION, EVEN IF GINKGOTREE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR GINKGOTREE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, IN NO EVENT SHALL GINKGOTREE’S LIABILITY FOR ANY CLAIM WHATSOEVER HEREUNDER (OR ASSOCIATED HEREWITH) EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. Some jurisdictions do not allow for the exclusion or limitation of incidental or consequential damages, so the limitations above may not apply to you.
14. DMCA COMPLIANCE.
14.1 It is the policy of Ginkgotree to respond to notices of alleged copyright infringement, in compliance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. Our response to these notices may include removing or disabling access to Content claimed to be the subject of infringing activity and/or terminating user accounts. If we remove or disable access to any Content in response to such a notice, we will make a good-faith attempt to contact the user that uploaded the Content, so that they may make a counter notification. Ginkgotree will, in appropriate circumstances, terminate the accounts of repeat infringers. 14.2 If a copyright owner or an agent thereof believes that any Content or link on the Platform infringes upon such owner’s copyrights, the copyright owner may submit a notice pursuant to the DMCA, a copy of which can be found here: http://www.copyright.gov/legislation/pl105-304.pdf (“DMCA”). Our designated DMCA copyright agent to receive notices of infringing material is: President and CEO, Ginkgotree, Inc. email@example.com Only DMCA notices should go to our DMCA copyright agent. DMCA notice may not be valid if they fail to comply with all of the requirements of the DMCA. 14.3 In some instances a user who has uploaded or posted Content which has been removed pursuant to a DMCA notice may supply a counter-notification. The owner of such affected Content may make a counter-notification pursuant to sections 512(g)(2) and (3) of the DCMA. When we receive a counter-notification, Ginkgotree may reinstate the posts or material in question. To file a counter-notification, the user must provide a written communication (by email to our copyright agent) that sets forth all of the items required by the DMCA.
15.1 Publicity. Ginkgotree may represent in press releases, on its website, and on other promotional materials that you are a subscriber of the Platform. 15.2 Notices. All notices to either party shall be in writing and shall be considered given on the date of (i) confirmed delivery if sent by overnight courier or express mail service, (ii) confirmed delivery if sent by postage pre-paid certified or registered mail (or the equivalent), return receipt requested or (iii) personal delivery. 15.3 Assignment. Neither party shall assign or otherwise transfer any of their rights or obligations without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without consent, in connection with sale of a majority of such party’s voting interests or substantially all of its assets to an acquiring party. 15.4 Governing Law; Jurisdiction; Arbitration. Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed, construed and enforced in all respects by the laws of the State of Michigan, excluding its choice of law/conflict of law provisions, and shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. Unless Ginkgotree elects (in its sole option) to proceed in your local jurisdiction, the jurisdiction and venue of any arbitration, litigation or other dispute resolution method between the parties (which arises out of or relates to this Agreement) shall be exclusively in Wayne County, Michigan; you expressly submit and consent to such exclusive jurisdiction and venue. Other than Ginkgotree’s right to seek injunctive relief, any claim or dispute arising out of or relating to this Agreement shall be decided by confidential binding arbitration before a single arbitrator. The parties shall equally split the arbitrator’s fees. 15.5 Export Controls. You agree to comply with all applicable laws, domestic or foreign. You further understand that the Platform and Services may be subject to restrictions and controls imposed by the U.S. Export Administration Act, as amended, and agree, if informed by Ginkgotree, to comply with applicable export and import control laws and regulations issued from time to time by the U.S. Department of Commerce and other governmental agencies, foreign or domestic. 15.6 Entire Agreement; Amendments; Waiver. This Agreement constitutes the entire understanding and agreement between you and Ginkgotree with respect to its subject matter. This Agreement may only be amended by mutual, written agreement of the parties. If there is any conflict between an Order Form, the Documentation and/or these Service Terms and Conditions, the following terms shall govern in the following priority: first, the Service Terms and Conditions, then the Documentation shall govern, and then the Order Form. Your purchase orders or similar documents (even if signed by Ginkgotree) shall not modify or amend this Agreement. The failure of either party to object to or act with respect to any conduct of the other party that is in violation of the terms of this Agreement shall not be construed as a waiver thereof. If any provision of this Agreement is for any reason and/or to any extent determined to be unenforceable under applicable law, the remaining provisions of this Agreement shall remain in full force and effect. 15.7 Providing Notice. Should you wish to or are required to notify Ginkgotree under this Agreement, use the contact information provided on the Ginkgotree website located at http://www.ginkgotree.com