Terms for Individual Subscriber Accounts

By using the haikulearning.com, myhaikuclass.com and web sites driven by the Haiku Learning software (the "Service"), a service of Haiku Learning Systems, Inc. (Haiku Learning), you and the users of this service are agreeing to be bound by the following terms and conditions ("Terms of Service").

Haiku Learning reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: http://www.haikulearning.com/terms.

Violation of any of these agreements will result in the termination of your account. You agree to use the Service at your own risk and understand that Haiku Learning cannot be and is not responsible for any information or data posted by users ("Content") posted on the Service and you nonetheless may be exposed to such materials.

Service:

This Service provides users with online access to information such as assignments and student grades, as well as acting as a communications medium to facilitate interaction between educators/teachers, students, and parents. The teacher determines the scope and nature of the information to make available to students and parents through the Service.

Account Terms:

  1. You must be 13 years or older to use this Service.
  2. If a child is under the age of 13, a parent or legal guardian MUST signup for an account under the parent's name. Any personal information identified with the student (such as: email address, first and last name) that we collect is therefore collected from the Parent or Legal Guardian.
  3. You must be a human. Accounts registered by "bots" or other automated methods are not permitted.
  4. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
  5. You are responsible for maintaining the security of your account and password. Haiku Learning cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
  6. You are responsible for all Content posted and activity that occurs under your account.
  7. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
  8. You agree to receive periodic emails from Haiku Learning announcing new features, upgrades or important announcements about our service.

Payment, Refunds, Upgrading and Downgrading Terms for Individual paid accounts:

  1. A valid credit card is required for individual paying accounts. Free and corporate accounts are not required to provide a credit card number.
  2. The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
  3. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
  4. For any upgrade or downgrade in individual account plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.
  5. Downgrading your Service may cause the loss of Content, features, or capacity of your account. Haiku Learning does not accept any liability for such loss.
  6. Haiku Learning charges a late fee of 2% per month for any unpaid balance more than 30 days past due.

Cancellation and Termination:

  1. All of your Content and personal information will be immediately deleted from the Service upon cancellation.
  2. If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again.
  3. Haiku Learning, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all Content in your account. Accounts with outstanding invoices more than 90 days past due may be deactivated at Haiku Learning's sole discretion. Haiku Learning reserves the right to refuse service to anyone for any reason at any time.

Modifications to the Service and Prices:

  1. Haiku Learning reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
  2. Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days notice from us. Such notice may be provided to individual paying customers at any time by posting the changes to the Haiku Learning website (www.haikulearning.com and myhaikuclass.com) or the Service itself or to corporate customers in writing.
  3. Haiku Learning shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

Copyright and Content Ownership:

  1. Haiku Learning claims no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours.
  2. Haiku Learning does not pre-screen Content, but Haiku Learning and its designees have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
  3. You shall not upload, post or otherwise make available on the Haiku Learning site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission, and hereby agree to indemnify, defend and hold harmless Haiku Learning for any and all claims, liabilities, damages and expenses arising from such infringement, including, but not limited to attorneys' fees.

General Conditions

  1. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis.
  2. Technical support is only provided to paying account holders and is only available via email to individual paying account holders and by email and phone to corporate accounts
  3. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Haiku Learning, or any other Haiku Learning service.
  4. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Haiku Learning.
  5. Haiku Learning may, but has no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or these Terms of Service.
  6. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Haiku Learning customer, employee, member, or officer will result in immediate account termination.
  7. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
  8. You must not upload, post, host, or transmit unsolicited email, SMSs, or "spam" messages.
  9. You must not transmit any worms or viruses or any code of a destructive nature.
  10. If your bandwidth usage exceeds 1 GB/month, or significantly exceeds the average bandwidth usage (as determined solely by Haiku Learning) of other Haiku Learning customers, we reserve the right to immediately disable your account or throttle your file or image hosting until you can reduce your bandwidth consumption.
  11. Haiku Learning does not warrant that (i) the Service will meet your specific requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Service will be corrected.
  12. You expressly understand and agree that Haiku Learning shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (regardless of whether Haiku Learning has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; (v) termination of your account; or (vi) any other matter relating to the Service.
  13. The failure of Haiku Learning to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and Haiku Learning and govern your use of the Service, superceding any prior agreements between you and Haiku Learning (including, but not limited to, any prior versions of the Terms of Service).
  14. You agree to hold harmless and indemnify Haiku Learning, and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Haiku Learning will provide you with written notice of such claim, suit or action.
  15. These Terms of Service will be governed by and construed in accordance with the laws of the State of Indiana, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in Elkhart County, Indiana, and you consent to the jurisdiction of such courts.

Terms for Institutional Contracts

Haiku Learning reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: http://www.haikulearning.com/terms.

Violation of any of these agreements will result in the termination of your account. You agree to use the Service at your own risk and understand that Haiku Learning cannot and is not responsible for any information or data posted by users ("Content") posted on the Service and you nonetheless may be exposed to such materials.

Service

This Service provides users with online access to information such as assignments and student grades, as well as acting as a communications medium to facilitate interaction between educators/teachers, students, and parents. The teacher determines the scope and nature of the information to make available to students and parents through the Service.

Account Terms

  1. You are responsible for complying with TITLE XIII- Children's Online Privacy Protection Act (COPPA).
  2. You agree to hold Haiku Learning harmless in the event that you are found in violation of Section 1303 of TITLE XIII- Children's Online Privacy Protection Act (COPPA).
  3. You must be a human. Accounts registered by "bots" or other automated methods are not permitted.
  4. You are responsible for maintaining the security of your account and password. Haiku Learning cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
  5. You are responsible for all Content posted and activity that occurs under your account.
  6. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
  7. Haiku Learning charges a late fee of 2% per month for any unpaid balance more than 30 days past due.
  8. In accordance with the Family Educational Rights and Privacy Act (FERPA) you stipulate that Haiku Learning 1) provides a service for the institution that it would otherwise provide for itself using employees; 2) has "legitimate educational interests" in the information disclosed if the service were performed by employees; and 3) is under the direct control of the educational agency or institution with respect to the use and maintenance of information from education records.

Cancellation and Termination

  1. If/when a contract is not renewed Haiku Learning will provide the institutional administrator with access to your saved content and data for at least 120 days, after which your content and data will be permanently and irrevocably removed from our servers.
  2. Haiku Learning reserves the right to suspend service to anyone who, at our discretion, participates in activity that is detrimental, illegal, and/or dangerous to the experience of other Haiku Learning users and/or jeopardizes the content, data and applications on our servers. In the event that HAIKU exercises this right, we will make efforts to remedy the situation by alerting the institutional administrator. If necessary, Haiku Learning further reserves the right terminate a suspended account permanently.
  3. Accounts with outstanding invoices more than 90 days past due may be deactivated at Haiku Learning's sole discretion.

Modifications to the Service and Prices

  1. If your total number of licenses exceeds the initial contracted amount, Haiku Learning will bill you for the overage at your contracted, annual per license amount. This is calculated as the number of excess user licenses each month, summed daily and divided by number of days left on your annual contract. This charge applies to any and all user accounts in excess of the contracted number if active at any point for any period of time.
  2. Haiku Learning reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
  3. Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days notice. Such notice may be provided to individual paying customers at any time by posting the changes to the Haiku Learning website (www.haikulearning.com) or the Service itself or to institutional customers in writing.
  4. Haiku Learning shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
  5. If your total bandwidth usage exceeds the amount stated by contract, you will be charged $2/month for each 1 GB of excess monthly bandwidth.
  6. If your total file space used exceeds the amount stated by contract, you will be charged $2/month for each 1 GB of excess file storage.

Copyright and Content Ownership

  1. We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours.
  2. Haiku Learning does not pre-screen Content, but Haiku Learning and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
  3. You shall not upload, post or otherwise make available on the Haiku Learning site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission, and hereby agrees to indemnify, defend and hold harmless Haiku Learning for any and all claims, liabilities, damages and expenses arising from such infringement, including, but not limited to attorneys' fees.

General Conditions

  1. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis.
  2. Technical support is only provided to paying account holders and is only available via email to individual paying account holders and by email and phone to corporate accounts.
  3. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, HAIKU, or any other Haiku Learning service.
  4. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Haiku Learning.
  5. We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or these Terms of Service.
  6. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Haiku Learning customer, employee, member, or officer will result in immediate account termination.
  7. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
  8. You must not upload, post, host, or transmit unsolicited email, SMSs, or "spam" messages.
  9. You must not transmit any worms or viruses or any code of a destructive nature.
  10. Haiku Learning does not warrant that (i) the Service will meet your specific requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Service will be corrected.
  11. You expressly understand and agree that Haiku Learning shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (regardless of whether Haiku Learning has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; (v) termination of your account; or (vi) any other matter relating to the Service.
  12. The failure of Haiku Learning to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and Haiku Learning and govern your use of the Service, superceding any prior agreements between you and Haiku Learning (including, but not limited to, any prior versions of the Terms of Service).
  13. You agree to hold harmless and indemnify Haiku Learning, and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Haiku Learning will provide you with written notice of such claim, suit or action.
  14. These Terms of Service will be governed by and construed in accordance with the laws of the State of Indiana, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in Elkhart County, Indiana, and you consent to the jurisdiction of such courts.

Terms for Parent Accounts

Haiku Learning reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: http://www.haikulearning.com/terms.

Violation of any of these agreements will result in the termination of your account. You agree to use the Service at your own risk and understand that HAIKU cannot and is not responsible for any information or data posted by users ("Content") posted on the Service and you nonetheless may be exposed to such materials.

Service

This Service provides users with online access to information such as assignments and student grades, as well as acting as a communications medium to facilitate interaction between educators/teachers, students, and parents. The teacher determines the scope and nature of the information to make available to students and parents through the Service.

Account Terms

  1. The subscribed individual or institution is responsible for complying with TITLE XIII- Children's Online Privacy Protection Act (COPPA).
  2. You agree to hold Haiku Learning harmless in the event that the subscribed individual or institution is found in violation of Section 1303 of TITLE XIII- Children's Online Privacy Protection Act (COPPA).
  3. You must be a human. Accounts registered by "bots" or other automated methods are not permitted.
  4. You are responsible for maintaining the security of your account and password. Haiku Learning cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
  5. You are responsible for all Content posted and activity that occurs under your account.
  6. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

Copyright and Content Ownership

  1. We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours.
  2. Haiku Learning does not pre-screen Content, but Haiku Learning and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
  3. You shall not upload, post or otherwise make available on the Haiku Learning site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission, and hereby agrees to indemnify, defend and hold harmless Haiku Learning for any and all claims, liabilities, damages and expenses arising from such infringement, including, but not limited to attorneys' fees.

General Conditions

  1. Your use of the Service is at your sole risk. The Service is provided on an "as is" and "as available" basis.
  2. Technical support is only provided to paying account holders and is only available via email to individual paying account holders and by email and phone to corporate accounts
  3. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Haiku Learning, or any other Haiku Learning service.
  4. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Haiku Learning.
  5. We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or these Terms of Service.
  6. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any HAIKU customer, employee, member, or officer will result in immediate account termination.
  7. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
  8. You must not upload, post, host, or transmit unsolicited email, SMSs, or "spam" messages.
  9. You must not transmit any worms or viruses or any code of a destructive nature.
  10. Haiku Learning does not warrant that (i) the Service will meet your specific requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Service will be corrected.
  11. You expressly understand and agree that Haiku Learning shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (regardless of whether Haiku Learning has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; (v) termination of your account; or (vi) any other matter relating to the Service.
  12. The failure of Haiku Learning to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and Haiku Learning and govern your use of the Service, superceding any prior agreements between you and Haiku Learning (including, but not limited to, any prior versions of the Terms of Service).
  13. You agree to hold harmless and indemnify Haiku Learning, and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Haiku Learning will provide you with written notice of such claim, suit or action.
  14. These Terms of Service will be governed by and construed in accordance with the laws of the State of Indiana, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in Elkhart County, Indiana, and you consent to the jurisdiction of such courts.


Terms for Subscribers to the Course Catalog

1. GENERAL.

1.1 The Agreement Between You and Haiku.

(a) By registering with Haiku Learning Systems, Inc. an Indiana corporation (“Haiku”) you (as the organizer of a course (“Organizer”) accept the following terms and conditions for the use of the Haiku Course Catalog services (the “Services”).

(b) This Terms of Service (“TOS”) and the order form attached hereto (the “Order Form”) constitutes the entire agreement between you and Haiku and governs your use of the Services, superseding any prior agreements, proposals, discussions or communications between you and Haiku on the subject matter hereof. This TOS shall last for the term as set forth in the Order Form (the “Term”). You also may be subject to additional terms and conditions that may apply when you use affiliate services, Content (as defined below) of third parties or third party software or the Services in a manner other than as governed by this TOS.

1.2 Laws

(a) Laws Governing This User Agreement

This TOS and the provision of the Services to you are governed by the laws of the state of Indiana , U.S.A., without regard to the provisions for choice of law thereunder. [Any dispute arising hereunder will be exclusively resolved in the courts located in the State of Indiana, Elkhart County].

(b) Arbitration

All claims, disputes and other matters in question arising out of, or relating to, this TOS, the provision of the Services or any performance hereof, including, without limitation, Indemnity Claims, shall be submitted to, and determined by, arbitration if good faith negotiations among the parties hereto, if any, does not resolve such claim, dispute or other matter. Such arbitration shall proceed in accordance with the then-current rules for arbitration established by the American Arbitrations Association (“AAA”), unless the parties hereto mutually agree otherwise, and pursuant to the following procedures:

  1. All proceedings before the arbitrators shall be held in Goshen, Indiana. The governing law shall be as specified in Section 1.2(a).
  2. The award rendered by the arbitrator(s) shall be final and binding, and judgment may be entered in accordance with applicable law and in any court having jurisdiction thereof.
  3. The award rendered by the arbitrators shall include (i) a provision that the prevailing party in such arbitration recover its costs relating to the arbitration and reasonable attorneys’ fees from the other party, (ii) the amount of such costs and fees, and (iii) an order that the losing party pay the fees and expenses of the arbitrators.
  4. The arbitrator shall by the agreement of the parties expressly be prohibited from awarding punitive damages in connection with any claim being resolved by arbitration hereunder.

SUBJECT TO THE FOREGOING ARBITRATION PROVISION, YOU AND HAIKU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED WITHIN THE CITY OF GOSHEN AND COUNTY OF ELKHART, INDIANA.

1.3 Waiver; Invalid Provisions.

THE FAILURE OR DELAY OF EITHER PARTY TO EXERCISE OR ENFORCE ANY RIGHT OR PROVISION OF THIS TOS SHALL NOT CONSTITUTE A WAIVER OF SUCH RIGHT OR PROVISION. No oral waiver, amendment or modification shall be effective under any circumstance whatsoever. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this TOS shall remain in full force and effect.

1.5 Titles Like This.

THE SECTION TITLES IN THIS TOS ARE FOR CONVENIENCE ONLY AND HAVE NO LEGAL OR CONTRACTUAL EFFECT.

1.6 Violations of This Agreement.

Please report any violations of this TOS by email to support@haikulearning.com.

2. DESCRIPTION OF HAIKU COURSE CATALOG

Haiku Course Catalog (the “Site”) provides a simple and quick means for Organizer to collect payments with respect to the registration by Students and Purchasers (as defined below) for courses that Organizer offers through the Haiku Digital Learning Platform, including the collection of course fees from Students or Purchasers. Those who want to attend such courses and events ("Students"). Another group is those who may be signing up and paying for Students to access a course (“Purchasers”). Organizers may access the Site, fill out a form about the courses that Organizer offers for registration through the Site, including pricing information, location, registration dates, etc., and authorize Haiku to collect fees online directly from Students or Purchasers on Organizer’s behalf. Students or Purchasers may pay to register for courses (“Course Registration Fees”) through either (a) checks that Student or Purchaser send directly to Organizer or (b) the Haiku payment processing gateway (the "Gateway"). For more information, please see www.haikulearning.com/catalog. This TOS applies to you and your use of the Services as an Organizer.

3. INDEMNIFICATION.

(a) You agree to defend, indemnify and hold Haiku, and its respective officers, directors, shareholders, agents, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a "Claim") due to or arising out of: (a) the Organizer Content (as defined below), whether made available by Organizer, its officers, directors, employees or agents or through the negligent acts or omissions of Organizer or its officers, directors, employees or agents, (b) your use of the Services in violation of this TOS, and (c) breach of any of the representations set forth in Section 11.1(a).

(b) Haiku agrees to defend, indemnify and hold Organizer and its respective officers, directors, shareholders, agents, and employees, harmless from any and all Claims alleging that (a) the Services (as permitted to be used hereunder) infringes or misappropriates the intellectual property rights of a third party, (b) any violations or alleged violations by Haiku or its employees or subcontractors of PCI Standards, as defined below in this TOS, and (c) breach of any of the representations set forth in Section 11.1(b).

(c) The foregoing indemnification obligations are subject to the following requirements: the party seeking indemnification (the “Indemnified Party”) promptly gives the other party (the “Indemnifying Party”) written notice of the Claim, (b) gives the Indemnifying Party sole control of the defense and settlement of the Claim (provided that the Indemnifying Party may not settle or defend any Claim unless it unconditionally releases the Indemnified Party of all liability), and (c) provides to the Indemnifying Party all reasonable assistance, at the Indemnifying Party’s cost.

4. COMPLIANCE WITH LAWS

Each party agrees to comply with all U.S. statutes, laws, regulations and local rules regarding online conduct and acceptable content. By way of illustration and not limitation, both parties agree to comply with all applicable laws and regulations regarding the transmission of technical data exported from the United States.

In addition, the Services are subject to United States export controls. No part of the Services may be exported or re-exported into, or to a national or resident of, any country to which the U.S. has embargoed goods and/or services of the same type as the Services. BY USING THE SERVICES OR ANY PART THEREOF (INCLUDING BY DOWNLOADING ANY SOFTWARE), YOU REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, AND YOU ARE NOT A NATIONAL OR RESIDENT OF, ANY SUCH COUNTRY. Further, no part of the Services (including any Software) may be exported or re-exported to any person or entity appearing on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the Bureau of Industry and Security's Denied Persons List. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not a person or entity or under the control of or affiliated with a person or entity that appears on any such list.

5. TERMS

5.1 Overview

This TOS governs all use by you as an Organizer of (a) the Site, (b) any and all services available on or through the Site and (c) all Software (as defined below) (collectively, the "Services"). The Services are owned and operated by Haiku. THIS TOS MAY BE MODIFIED (I) ON A COURSE BY COURSE BASIS THROUGH A WRITTEN ADDENDUM AGREEMENT TO THIS TOS, SIGNED BY YOU AND AN AUTHORIZED OFFICER OF HAIKU, OR (II) BY HAIKU AS PROVIDED IN SECTION 5.2 BELOW.

5.2 Modification.

HAIKU RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO MODIFY OR REPLACE ANY OF THE TERMS OR CONDITIONS OF THIS TOS AT ANY TIME UPON WRITTEN NOTICE TO YOU. If any change to this TOS is not acceptable to you, you will notify Haiku that you reject such change and such change shall not apply to you during the Term. If you choose to renew, such changed terms shall thereinafter apply to you when using the Services.

6. YOUR USE OF HAIKU’S SERVICES

  1. The Services
  1. Haiku hereby grants you a world-wide, non-exclusive, non-transferable, non-sublicensable, right to access use and display (publicly or otherwise) the Services throughout the Term in accordance with the terms of this Agreement. Notwithstanding the foregoing, you shall not knowingly, and shall not permit anyone else to, directly or indirectly: (i) create derivatives of any part of the Services or Site Content (as defined below); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (iii) rent, lease, resell, distribute or use the Services for timesharing, service bureau, or commercial purposes (except for the limited commercial purpose of selling course registrations through the Site as an Organizer in accordance with this TOS); (iv) remove or alter any proprietary notices or labels on or in the Services or Site Content; (v) download any content except incompliance with this TOS or (v) engage in any activity that interferes with or disrupts the Services.

6.2. Account, Password and Security

As part of the Site registration process, Haiku will provide you with instructions on the process to create a password and account. You will be responsible to choose a password. You shall use commercially reasonable efforts to maintain the confidentiality of the password, and are fully responsible for all activities by those individuals to whom you grant access to your account, and for all activities by those individuals who gain access to your account due to the negligent actions or inactions or willful conduct by you or any employee or independent contractor including, without limitation, all actions by sub-users that you register under your account. You agree to (a) immediately notify Haiku Learning of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Haiku Learning is not liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account, unless caused by Haiku’s negligence or misconduct.

6.3 Software License

If you are allowed to download or use any Software in connection with the Services, Haiku hereby grants you a non-transferable, non-sublicensable, non-exclusive license to use the Software solely for your use in connection with the Services, in accordance with this TOS and the written instructions/directions (if any) provided by Haiku in conjunction with the Software. For purposes of this TOS, “Software” shall mean any and all software that is available on or through the Site or otherwise provided by Haiku. For clarity, the Software will be deemed a part of the "Services" hereunder

The Software and the transmission of applicable data is subject to United States export controls. No Software may be downloaded or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

7. PAYMENTS AND METHODS OF PAYMENT

7.1 Overview.

Organizers may allow Students to make payment through the Site as follows: (1) by check or money order directly to Organizer, and (2) "Credit Card Processing" or “CCP”, which requires the use of the Gateway for the collection of Course Registration Fees.

7.2 Direct Payment by Buyers

Organizers will collect all monies directly from Students under the check option. By registering for and using the check option, you agree to accept the responsibility for receiving funds via check and providing refunds to Students at your own discretion. Haiku will not be responsible or liable for refunds, errors in issuing refunds, or lack of refunds in connection with the use of the check option.

7.3 Credit Card Processing

(a) Gateway; Payment Process.

If an Organizer elects to use the CCP, and a Student pays a Course Registration Fee by credit card, payment processing occurs through the Gateway. If a Student pays a Course Registration Fee by credit card, Haiku will collect the Course Registration Fees from the Student on behalf of the Organizer and shall remit these fees to Organizer, after deducting all applicable Services Fees, within three business days of the next Disbursement Deadline. Disbursement Deadlines are the 1st and the 15th of the month after the Course Registration Fee is deposited into Haiku’s merchant bank account. Haiku shall remit the Course Registration Fees to Organizer by [electronic funds transfer]. An itemized statement will be sent contemporaneously with the payment remittance, detailing the Course Registration Fees received and Service Fees withheld for all transactions during the last period. All Course Registration Fees for a given course are earned by Organizer upon completion of the registration process by Student but will be paid to Organizer be net of all Service Fees.

(b) Refunds.

(1) It is the responsibility of the Organizer to communicate its refund policy to Students and Haiku in the refund policy page on the Site. Organizer shall ensure that its refund policy is consistent with the terms of this TOS. In the event any Course is non-refundable, Organizer shall clearly provide that notification in the Organizer Content. If a Student requests a refund of the Course Registration Fees from Organizer, Organizer shall directly issue refunds to Students via the Site, provided the refund is issued by Organizer within sixty (60) days after payment of the Course Registration Fee, or by check at any time. Refunds requested or issued following such sixty (60) day period will not be processed through the Site, unless otherwise agreed to by Haiku in its sole discretion and will need to be processed by Organizer directly with the Student. If a Student requests a refund directly from Haiku, Haiku shall forward all such requests directly to Organizer and Organizer shall have sole responsibility to address such refund with the Student in accordance with the above policies. If Organizer issues a refund to a Student via the Site, and if such Course Registration Fee has already been remitted by Haiku to Organizer, upon charge to Haiku’s account of such amount, Haiku will issue a statement to Organizer for payment of such refunded amount and Haiku may offset such amount from the next payment due to Organizer. If the Course Registration Fee had not already been remitted by Haiku to Organizer, then Haiku shall net the amount to be paid to Organizer against the amount to be refunded to Haiku, will issue a statement to Organizer setting forth both transactions and Haiku may offset such amount from the next payment due to Organizer.

If Organizer cancels a Course, it shall directly refund the Course Registration Fees to the Student either via delivery of check or through the Site and refunds shall be addressed as set forth in the previous paragraph. In the event that refunds (due to refunds and/or course cancellations) exceed $10,000 in any one (1) month, a service fee of 3.5% will be applied to refunded amounts and shall be paid to Haiku by the Organizer within thirty (30) days of being invoiced.

All communications or disputes regarding refunds are between the Organizer and Student, and Haiku will not be responsible or liable for them, unless caused by Haiku’s negligence or willful misconduct.

All sales, fees, charges, and funds are payable in U.S. Dollars.

(c) Credit Card Chargebacks.

Under the CCP option, any credit card chargebacks initiated by a Student’s merchant bank for any reason with respect to a course shall be the responsibility of the Organizer of such event. All communications and disputes regarding chargebacks are between the Organizer and Student, and Haiku will not be responsible or liable in any way for them, unless caused by Haiku’s negligence or willful misconduct. Organizer hereby agrees to fully indemnify Haiku and its affiliates for, chargebacks initiated by a Student’s merchant bank with the process to be the same as issuing a refund under Section 7.3(b) of this Agreement.

(d) Confirmation of Course Registration

Upon receipt of a credit card authorization from each individual course registration, Haiku generates a confirmation message and issues a unique confirmation number. You agree to unconditionally accept, honor, and fulfill all registration commitments that have been confirmed by Haiku through the Services, and it is your responsibility to verify the Student’s membership status, confirmation number and/or any event restrictions prior to the subject event.

(e) Taxes; Withholding.

You represent that you are exempt from federal, state and local taxes and are a 501(c)(3) organization and are responsible for (and will indemnify Haiku and its affiliates against) all taxes associated with your Course Registration Fees through the Services (excepting taxes based on Haiku’s income), if any.

(f) PCI Compliance and Data Security

(1) Haiku acknowledges that, as a result of entering into and performing under this Agreement, Haiku may obtain certain information relating to identified or identifiable individuals, including without limitation: (a) information relating to (i) Organizer’s members, (ii) Students and other users of the Site, and (b) Cardholder Data (the foregoing information, collectively, “Personal Information”). For purposes of this Agreement, “Cardholder Data” means any information concerning payment instruments and transactions, including name, account numbers, security codes, service codes (i.e., the three- or four-digit number on the magnetic stripe that specifies acceptance requirements and limitations for a magnetic stripe read transaction), and valid to and from dates, as well as information and data related to card or cardholder transactions using payment instruments and methodologies (e.g., charge, credit, debit and prepaid), regardless of whether or not a physical card is used in connection with such transactions.

(2) Haiku’s attention is drawn to: (a) the laws, rules and regulations of each country that pertain to data protection, including the Massachusetts data security regulations (201 Mass. Code Regs. §§ 17.01 – 17.05), the Data Protection Act 1998, Directive 95/46/EC of the European Parliament and the implementing national laws in each of the twenty-seven (27) EU Member States, the Japanese Law Concerning the Protection of Personal Information and the applicable implementing Ministry Guidelines and any legislation and/or regulations implementing them, the Hong Kong Personal Data (Privacy) Ordinance, the Canadian Personal Information Protection and Electronic Documents Act, and the Argentinean Personal Data Protection Regulation; (b) the security standards for the protection of Cardholder Data with which the payment card companies collectively or individually require merchants to comply, including without limitation the Payment Card Industry Data Security Standards currently in effect and as may be updated from time to time (such security standards, the “PCI Standards”); (c) any obligations imposed by self-regulatory bodies promulgating standards relating to the collection use and protection of Personal Information that apply to Haiku; and (d) any privacy policies of Organizer applicable or relevant to Haiku’s collection, transmission, storage, use and/or disclosure of Personal Information (the foregoing laws, rules, regulations, standards and policies, collectively, the “Data Protection Requirements”).

(3) Haiku will hold Personal Information in strict confidence and not disclose Personal Information to any third party without prior written consent of either Organizer or Student except as otherwise required by law. Haiku will, and will cause each permitted Haiku subcontractor to, process and use the Personal Information only on and pursuant to the instructions of Organizer or as otherwise expressly provided in this Agreement. Haiku, and its respective subcontractors will have no right, title or interest in any Personal Information obtained by it as a result of this Agreement. Notwithstanding anything in this Agreement to the contrary, Haiku will not be entitled to use the Personal Information for its own purposes or for the purpose of any third party. Haiku may process Personal Information only on behalf of Organizer and in compliance with this TOS, all laws of all applicable jurisdictions, and the Data Protection Requirements (including without limitation the PCI Standards). Haiku will not transfer or allow access to Personal Information (other than to Organizer under this Agreement) to or from any location unless agreed to in writing signed by both Haiku and Organizer.

(4) Haiku will, and will cause each subcontractor to, establish and maintain, consistent with the industry standards within Haiku’s industry, appropriate administrative, technical, and physical safeguards (including software safeguards) and procedures to protect against anticipated threats or hazards to the integrity and security of, unauthorized or accidental destruction, loss, or alteration of, and unauthorized access to, Personal Information and other records and information of Organizer and Students (collectively, the “Data Safeguards”). The Data Safeguards shall include, without limitation, business continuity, contingency and disaster recovery plans that restore normal operating procedures as promptly as practicable in the event of a disruption, business interruption or failure, and to mitigate risks associated with any unplanned interruption of Organizer’s operations or business or any unplanned inaccessibility to Personal Information. Haiku will provide Organizer with documentation regarding the Data Safeguards and permit Organizer or Organizer’s designees to audit such Data Safeguards. The Data Safeguards shall include at least the following specific security measures: (a) a risk assessment; (b) access controls and restrictions, including controls and restrictions on access to Personal Information in electronic and physical form, that, among other things, limit access to Personal Information to the minimum number of personnel who need such access to provide the goods and services under this Agreement; (c) industry-standard password protections, firewalls and malware protections to protect Personal Information stored on computer systems; (d) appropriate disposal of Personal Information in a manner that renders it unreadable; (e) education and training for personnel regarding personal information security, including the requirements of Haiku’s information security programs; (f) encryption of all transmitted records and files containing Personal Information that will travel across public networks and that will be transmitted wirelessly; and (g) encryption of all Personal Information stored on laptops and, where technically feasible, on other portable devices.

(5) If Haiku intends to implement a change to the Data Safeguards (including changes implemented pursuant to Organizer’s request), such change: (a) will not alter or modify Haiku’s ability to perform the Services hereunder or alter the nature of the Services performed by Haiku hereunder; (b) will not weaken, compromise or alter the confidentiality and security of Personal Information; and (c) will not affect the cost of the Services to Organizer.

(6) In the event that any Personal Information is disclosed or suspected to have been disclosed by Haiku in violation of this Agreement or any applicable laws or regulations, or if Haiku becomes aware of or suspects any attempted disclosure, Haiku will immediately notify Organizer of such occurrence. Any unauthorized disclosure or use of Personal Information connected directly or indirectly with the performance of Haiku’s obligations under this Agreement (including access to Personal Information by theft, hacking or inadvertent error)caused by the negligence or willful misconduct of Haiku will constitute a material breach of this Agreement by Haiku, permitting Organizer to immediately terminate this Agreement upon notice to Haiku without providing Haiku an opportunity to cure such a breach. Haiku agrees that Organizer, in addition to any other available remedies, shall have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of the provisions of this Agreement applicable to Personal Information, without the necessity of posting any bond or other security. Haiku, at its expense, shall and shall cause Haiku’s subcontractors to cooperate with Organizer and use best efforts to mitigate any potential damage caused by a breach of its obligations under this Agreement applicable to Personal Information.

Upon expiration or termination of this Agreement for any reason, Haiku will, and will cause Haiku’s subcontractors to, immediately cease to process the Personal Information and promptly return to Organizer all such Personal Information, or destroy such Personal Information, in accordance with such instructions as may be given by Organizer at that time (including all copies of Personal Information generated in the course of Haiku’s ordinary backup procedures, including all fragments, excerpts and any other materials containing Personal Information, whether or not such Personal Information has been intermingled with Haiku’s own information or materials and irrespective of the entity in whose systems, records, archives or backups such Personal Information resides). Upon Organizer’s request, Haiku will certify to Organizer that all forms of the requested Personal Information have been returned or destroyed.

Haiku agrees to: (1) keep secure all information to which it has access relating to Students and Organizer in accordance with applicable law, industry best practices, and Haiku’s own privacy and security policies; (2) maintain and disclose any personal data or other information strictly in accordance with all applicable legal requirements of any applicable jurisdiction and not use or disclose such information for any unlawful purpose; and (3) comply with all applicable rules of credit card associations, including but not limited to, Visa, MasterCard, American Express, Discover, and any other credit cards accepted by the Organizer or Haiku.

Haiku represents warrants and covenants that, as of the date of this TOS, it has received the applicable level of certification under the PCI Standards and shall maintain such certification at all times during the term. Haiku shall indemnify and hold the Organizer harmless against any claims arising from an actual or alleged breach of this warranty.

8. SERVICE FEES TO HAIKU, AUDIT

(a) Organizer agrees to compensate Haiku the following for all Services: For all Students who register and pay via utilizing the CCP option, the fee set forth in the appropriate Order Form, between Organizer and Haiku (“Service Fees”). The applicable fees are attached to this Agreement as Exhibit A.

(b) In the event that either party fails to pay to the other any amount owed pursuant to this TOS when due, such amount shall bear interest calculated from the date due until paid in full at a rate equal to the lesser of (a) ten percent (10%) per annum, and (b) the maximum amount permitted by applicable law and the defaulting party shall be responsible for all costs of enforcement, even if arbitration or litigation is not initiated.

In the event any amounts are owed by Organizer to Haiku under this TOS or otherwise, Haiku may, without limiting its other rights and remedies, (i) deduct such amounts from Organizer’s outstanding balance, whether for that particular course or for any other course that Organizer lists through the Services; and/or (ii) send an invoice to Organizer for such amounts to the extent Organizer outstanding balance is insufficient to cover these costs, in which case Organizer shall pay Haiku such invoiced amounts within thirty (30) days after the date of the invoice. In addition, Organizer hereby agrees and authorizes Haiku to initiate an electronic funds transfer to debit the amounts owed from any of Organizer’s bank accounts to which Course Registration Fees have been sent. If payment for any amounts due to Haiku hereunder are not made by Organizer when due, Haiku reserves the right, in its sole discretion and without limiting its other rights and remedies, to terminate Organizer’s registration for the Services (including any and all accounts that Organizer may have) and to cancel all other events listed by Organizer.

  1. Haiku shall keep accurate books of account and records covering all transactions under this Agreement, and Organizer and its authorized representatives shall have the right at all reasonable business hours, and upon reasonable notice, to examine and audit said books of account and records and all other documents and materials in the possession or under the control of Haiku with respect to the subject matter and terms of this Agreement. If an audit reveals that Haiku has misrepresented or underreported by more than eight (8%) percent the payments due or payable to Organizer, then, in addition to recomputing and making immediate payment of the sums due based on the true items together with interest thereon, Haiku shall pay costs and expenses incurred by Organizer in connection with such audit and checking. Any violation may be cause for termination of this agreement.

9. CONTENT

9.1 Site Content.

You agree that all material, including without limitation information, data, software, text, design elements, graphics, images and other content provided by Haiku hereunder (collectively, "Content"), and contained in or delivered via the Services or otherwise made available by Haiku in connection with the Services (but expressly excluding any information, data, software, text, design elements, graphics, images and other content provided by Organizer, in which Organizer retains all rights)(collectively, "Site Content") is protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. Haiku may own the Site Content or portions of the Site Content may be made available to Haiku through arrangements with third parties. Except as expressly authorized under this TOS, or by Haiku in writing or in connection with your use of the intended functionality of the Services You may print or download a reasonable number of copies of the Site Content for your own informational purposes, provided that you retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any Site Content for any other purpose is strictly prohibited without the express prior written permission of Haiku. You shall use the Site Content only for purposes that are permitted by this TOS and any applicable laws and regulations (foreign and domestic). Any rights not expressly granted herein are reserved.

9.2 License of Organizer Content.

Organizer exclusively owns and reserves all rights, title and interest in and to all information, data, software, text, design elements, graphics, images and other content it provides (“Organizer Content”), and except as otherwise expressly provided herein does not grant Haiku any rights to the Content.

Organizer acknowledges and agrees that if it makes available any Organizer Content to the Site as an Organizer, you hereby grant to Haiku a limited, non-exclusive, worldwide, royalty-free, right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and such Organizer Content solely as may be necessary to perform the Services on your behalf under this Agreement, and solely in connection therewith.

9.3 Digital Millennium Copyright Act

Haiku respects others' intellectual property rights and has made every effort to secure appropriate clearances for all proprietary intellectual properties that Haiku makes available on its and its affiliates' websites and we require our users to do the same. Haiku will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act ("DMCA"). The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. If Haiku receives notification that any Content made available by you in connection with the Services infringes on any copyright, Haiku shall provide you all notices as required by law and shall require you remove any non-compliant materials or your Content may be blocked.

10. SUB-DOMAINS.

Haiku may provide you with the right to use a sub-domain within the Site (e.g., [sub-domain prefix].haikulearning.com). All such sub-domains are the sole property of Haiku, except to the extent those such sub-domains incorporate any trademarks or other intellectual property proprietary to you, which shall remain your sole property.

11. REPRESENTATIONS, WARRANTY AND DUTIES

11.1 Representations
(a) Organizer represents and warrants to Haiku that:

(1) It has the authority to represent and bind the contracting party.

  1. It has all the rights, power and authority necessary to enter into this TOS, including to grant the licenses granted herein, including Section 9.2.
  2. The Organizer Content (i) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, (ii) does not involve gambling, gaming, sweepstakes, and/or any other activity with an entry fee and a prize, and (iii) complies with all applicable laws and regulations (foreign and domestic).
  3. All courses are and will be accurately and truthfully described when Organizer submits event information to the Site.

(b) Haiku represents and warrants to Organizer that:

(1) It has the authority to represent and bind the contracting party.

  1. It has all the rights, power and authority necessary to enter into this TOS, including to grant the licenses granted herein.
  2. The Content or Services, as the case may be, provided under this Agreement (i) do not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, (ii) do not involve gambling, gaming, sweepstakes, and/or any other activity with an entry fee and a prize, and (iii) comply with all applicable laws and regulations (foreign and domestic.

11.2 Duties of the Organizer

  1. To inform Haiku immediately about unavailability or malfunctions of the Haiku Website.
  2. To use the Services in accordance with the terms of this TOS.
  3. To inform Haiku immediately about any change of name, company name, address, legal form or bank details in written form or via email.
  4. To cause all employees and independent contractors of Organizer not to:

  1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
  1. harm minors in any way;
  1. facilitate gambling, gaming, raffles, lotteries, sweepstakes, and/or any other activity featuring the award of a prize;
  1. impersonate any person or entity, including, but not limited to, an Haiku representative or forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  1. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
  1. upload, post, email, transmit or otherwise make available any Organizer Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  1. upload, post, email, transmit or otherwise make available any Organizer Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person or entity;
  1. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas that are designated for such purpose and within the scope of such designation;
  1. upload, post, email, transmit or otherwise make available any Organizer Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to otherwise interact with the Services in a manner not permitted by this TOS or expressly authorized by Haiku;
  1. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
  1. Duties of Haiku
  1. To post (within a reasonable timeframe) information about known issues to Haiku’s site status.haikulearning.com, and post any fixes to Haiku’s Version History page.
  2. To provide the Services in accordance with all applicable laws and the rights of third parties.
  3. To inform Organizer immediately about any change of name, company name, address, legal form or bank details in written form or via email.
  4. To provide the Services only in accordance with applicable laws and government regulations.
  1. Additional Rights of Haiku

You acknowledge that Haiku does not pre-screen any Content provided or made available by you or any third party in connection with the Services, but that Haiku and its designees shall have the right (but not the obligation) in their sole discretion to (i) monitor, alter, edit, or remove any of your Content, in whole or in part, and/or (ii) rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that Haiku may preserve your Content and may also disclose your Content if required to do so by law. . You understand that the technical processing and transmission of the Services, including Organizer Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

  1. Warranties of Haiku

Haiku warrants that the Services will substantially achieve the functionality described in the [User Guide] and shall maintain 99.9% up-time service levels. Haiku does not warrant that the Services will be error-free. Should uptime drop below the 99.9% threshold, Haiku will provide a report to Organizer within 24 hours of the Services becoming unavailable. This report will include a description of the cause and duration of the unavailability. If the services provided by Haiku fail to operate at 99.8% uptime in a given quarter (not including scheduled maintenance), Haiku will refund the Organizer 10% of the Service Fees paid by Organizer for such quarter. Should the Services fail to reach 99.5% uptime in a given quarter (not including scheduled maintenance), Haiku will refund Organizer an additional 10% of the Service Fees paid by Organizer for such quarter.

12. HAIKU’S ABSOLUTE RIGHT TO MAKE SERVICE MODIFICATIONS/SUSPENSIONS.

Haiku reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) for any reason or no reason with or without notice. Haiku will not be responsible to you for a refund, in whole or part, of Service Fees for any reason, except for Service Fees and other third party service providers used by Haiku in connection with providing the Services) related to refunds issued to Buyers. You agree that Haiku shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

13. NOTICES

Notices to you may be made via either email or regular mail to the address in Haiku’s records. The Services may also provide notices of changes to this TOS (the effect of which shall be subject to the preceding provisions of this Agreement) or other matters by displaying notices or links to notices to you generally on the Services. Any notice from you to us shall be sent in writing to our mailing address at Haiku Learning Systems. Inc, Inc., P.O. Box 240, Goshen, IN 46527, USA, Attn: Bryan Falcón.

14. DEFAULT; HAIKU’S ABSOLUTE RIGHT TO TERMINATE YOUR RIGHT TO USE HAIKU’S SERVICES.

14.1 Any of the following events shall be deemed to be an “Event of Default” hereunder:

(a) organizer shall fail to make any payment required under this Agreement as the same shall be due or shall fail to make any payment of any cost or expense (including, without limitation, reasonable attorneys’ fees) required pursuant to this Agreement as the same shall be due, and such failure to pay continues for five (5) business days after such due date;

(b) Either party fails or neglects to perform, keep or observe any of the covenants contained in this Agreement and such failure or neglect shall not be cured within the applicable period set forth in the applicable provision; if any, and if no cure period is stated then there shall be thirty (30) calendar day cure period;

(c) A judgment, decree or order requiring payment in excess of One Hundred Thousand Dollars ($100,000) shall be rendered against either Haiku or Organizer and such judgment or order shall remain unsatisfied or undischarged and in effect for thirty (30) consecutive days without a stay of enforcement or execution, provided that this clause (c) shall not apply to any judgment for which Haiku or Organizer is fully insured;

(d) A notice of Lien, levy or assessment is filed or recorded with respect to any of the assets of Haiku or organizer, by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency or any taxes or debts owing at any time or times hereafter to any one or more of them become a lien, upon any of the assets of Haiku or Organizer;

(e) A proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed against Haiku or Organizer, and such proceeding is not dismissed within sixty (60) days of the date of its filing, or a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed by Haiku or organizer, or Haiku or Organizer makes an assignment for the benefit of creditors, or Haiku or Organizer takes any action to authorize any of the foregoing;

(f) Haiku or Organizer voluntarily or involuntarily dissolves or is dissolved, or its existence terminates or is terminated; and

14.2 Upon the occurrence of any Event of Default (and after any applicable cure period, if any), Haiku, in its sole discretion, may terminate Organizer’s password, accounts (or any part thereof) and/or Organizer’s right to use the Services, and remove any and all of Organizer Content within the Services. You agree that any termination of your right to use the Services may be effected without prior notice, and acknowledge and agree that Haiku may immediately deactivate or delete your account and all related Content and files related to your account and/or bar any further access to such files or the Services. Further, you agree that Haiku shall not be liable to you or any third-party for any termination of your right to use or otherwise access the Services. All provisions of this TOS that by their nature should survive termination of your right to use the Services shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses).

15. LINKS TO OTHER INTERNET WEBSITES

The Services may provide, or third parties may provide, links to other Internet websites or resources. Because Haiku has no control over such websites and resources, you acknowledge and agree that Haiku is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that Haiku shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with any use of or reliance on any such Content, advertising, products, services or other materials available on or through any such website or resource.

16. LIMITATION OF LIABILITY

EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS PROVIDED UNDER SECTION 3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS TOS, FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (III) AMOUNTS IN EXCESS OF US $100.00 IN THE AGGREGATE FOR ALL CLAIMS OR (IV) ANY MATTERS BEYOND A PARTY’S REASONABLE CONTROL. HAIKU SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF THE ORGANIZER CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

17. INSURANCE

Haiku agrees to carry and pay for, and to maintain in full force and effect throughout the term of this Agreement, the following:

  1. Media, cyber and privacy liability insurance with not less than $5 million limitation of liability for each occurrence and in the aggregate.
  2. Organizer will be named as additional insureds on all Haiku’s policies that cover media, cyber and privacy policy exposures for liability arising out of this Agreement. [All insurance coverage for additional insureds will be on a primary and non-contributory basis.]
  3. Before the provision of any Services hereunder and upon Organizer’s request, Haiku shall furnish Organizer with certificates of insurance which evidence the required insurance or certified copies of the insurance policies.
  4. Not less than two (2) weeks before the expiration or cancellation of the insurance coverage required by this Agreement, Haiku shall provide Organizer certificates of insurance which evidence renewal, continuation, or replacement of the required insurance policies or certified copies of such insurance policies.
  5. Upon failure to provide such evidence of coverage or certified copies of insurance policies within the time periods specified, Organizer may direct Haiku to cease performing the Services until the required documents have been provided.

18. HAIKU’S DISCLAIMER OF WARRANTIES

EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS TOS. EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. HAIKU MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, , OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE SERVICES THEMSELVES (OR ANY PART THEREOF) WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. HAIKU IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, BUYER OR OTHER NON-ORGANIZER, ORGANIZER OR THIRD PARTY BEFORE, DURING AND/OR AFTER A COURSE; AND HAIKU WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED IN (I) THROUGH (V) ABOVE. YOU ACKNOWLEDGE THAT HAIKU HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USERS’ (INCLUDING BUYERS’, OTHER NON-ORGANIZERS’ AND ORGANIZERS’) CONTENT OR LISTINGS, OR THE ABILITY OF ANY USER (INCLUDING BUYERS AND ORGANIZERS) TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Notwithstanding the foregoing, you may report the misconduct of users, Buyers, other non-Organizers, Organizers and/or third parties in connection with the Site or any Services to Haiku. Haiku, in its sole discretion, may investigate the claim and take necessary action.

19. TRADEMARK INFORMATION

The trademarks, service marks, and logos of each party(the " Trademarks") used and displayed in connection with the Services, or use thereof, are registered and unregistered trademarks or service marks of such party. Other company, product, and service names used in connection with the Services may be trademarks or service marks owned by third parties (the "Third Party Trademarks", collectively the "Trademarks"). The offering or use of the Services shall not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services or use thereof without the prior written consent of such party specific for each such use. The Trademarks may not be used to disparage the party, any third party or such party’s products or services, or in any manner that damages any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless the party approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any party’s Trademark shall inure to such party’s benefit.

20. USER PRIVACY

Except as otherwise set forth in this Agreement, all information provided by you or collected by Haiku in connection with the Services is governed by Haiku’s Privacy Policy, a copy of which is located at http://www.haikulearning.com/privacy, which is hereby incorporated by reference into this TOS. Haiku strongly recommends that you review the Privacy Policy closely. In particular, Organizers should note that Haiku may use information it receives or collects regarding Students in accordance with the terms of its Privacy Policy, which may include use for marketing or promotion of other events or services that may be of interest to such Students. Further, any information submitted or provided by you to the Services may be publicly accessible. You should take care to protect private information or information that is important to you. Haiku shall not be responsible for protecting any such information and is not liable for the protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use. Please be aware that if you decide to disclose personally identifiable information on the Services, this information may become public. Haiku does not control and shall not be responsible for the acts of you or any other users (whether Organizers, Buyers, other non-Organizers or otherwise) of the Services.