Last updated: June 16, 2014
PLEASE READ THIS AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY BEFORE USING THE PERSISTENCE PLUS SERVICES, INCLUDING THOSE SERVICES AVAILABLE THROUGH THIS WEBSITE (COLLECTIVELY, THE “SERVICE”). THE SERVICE IS OFFERED BY PERSISTENCE PLUS, LLC. (“PERSISTENCE PLUS,” “WE,” OR “US”) AND MAY BE OPERATED IN COOPERATION WITH, OR ON BEHALF OF, AN EDUCATIONAL INSTITUTION WITH WHICH YOU ARE AFFILIATED (THE “SCHOOL”).
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE (INCLUDING ANY PORTION OF THE SERVICE MADE AVAILABLE ON WEBSITES, VIA SMS TEXT MESSAGES, BY EMAIL, OR THROUGH THE USE OF A MOBILE APPLICATION). BY USING THE SERVICE IN ANY MANNER, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
- ACCEPTANCE OF TERMS. The Service is offered subject to acceptance without modification of all of the terms and conditions contained in this Terms of Service. The Service is intended to be used by college students. It is not directed to individuals under the age of thirteen (13), and we request that such individuals do not provide personal information through the Service. You represent and warrant that you are an individual (and not a corporation); you are of legal age to form a binding contract or if that you are not of legal age to form a binding contract, you have received the permission of your parent or guardian to use the Service and your parent or guardian has reviewed these Terms of Service and has agreed to be bound by these Terms of Service on your behalf; and that all information you submit using the Service is complete, accurate and truthful and that you will maintain and update such information as needed. As a condition of use of the Service, you shall not use the Service for any purpose that is prohibited by law or by the Terms of Service. In addition, we may, at any time and without liability, modify or discontinue all or part of the Service or offer opportunities to some or all Service users. You may discontinue your use of the Service at any time by contacting us as set forth below.
- SERVICE. Persistence Plus has been engaged by either the School, or another organization with which you are associated, to provide the Service to you in order to assist you with your academic performance and efforts to complete your postsecondary studies. As part of the Service, Persistence Plus provides certain customized and interactive behavioral interventions, including general and specific nudges (i.e., messages designed to promote specific academic behaviors or mindsets), which may be provided to you through SMS messaging and/or other electronic communications, and Persistence Plus also receives feedback and other information from you relating to your academic performance. Please note that, as further described in Section 9 below, the Service is provided “AS IS” and Persistence Plus does not guarantee any results from use of the Service, including that your use of the Service will result in any specific outcome or have any effect on your academic performance or the completion of your postsecondary studies.
- CONTENT. The Service, and all content made available to you through your use of the Service (including articles, data, text, photographs, images, illustrations, graphics and interactive features) (the “Content”) is owned by Persistence Plus. Our trade names, trademarks and service marks include “Persistence Plus” and any associated logos. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All trade names, trademarks, service marks and logos on the Service that are not owned by us are the property of their respective owners, including the trade names, trademarks, service marks and logos associated with the School. Nothing contained in or available through the Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner. You may not: (a) harvest or collect information about other users of the Service; (b) reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit the Service or any Content, except as expressly authorized herein, without the express prior written consent of Persistence Plus; (c) reverse engineer, decompile or disassemble any portion of the Service, except where such restriction is expressly prohibited by applicable law; (d) remove any copyright, trademark or other proprietary rights notice from the Service or Content; (e) frame or mirror any portion of the Service or Content, or otherwise incorporate any Content into any product or service, without Persistence Plus’s express prior written consent; (f) systematically download and store Content; (g) attempt to gain control of, interfere with or disrupt the operation of the Service or the servers or networks used to make the Service available, including by hacking or defacing any portion of the Service; or violate any requirement, procedure or policy of such servers or networks; (h) post, transmit or otherwise make available through or in connection with the Service any materials that are or may be threatening, harassing, degrading, hateful, intimidating, defamatory, libelous, fraudulent, obscene, indecent, pornographic, otherwise tortious or objectionable, or that otherwise fails to respect the rights and dignity of others; or (i) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Content, or reproduce or circumvent the navigational structure or presentation of the Content, without Persistence Plus’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted at /robots.txt on the Persistence Plus website. Persistence Plus grants to the operators of public search engines permission to use spiders to copy Content found on the Persistence Plus website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Persistence Plus reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
- YOUR ACCOUNT. You may need to register to use all or part of the Service. We may reject, or require that you change, any account name, password or other information that you provide to us in registering. Your access code, account name and password, if applicable, are for your personal use only. You are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer or other device, and you are responsibility for all activities, including purchases, that occur in connection with your account or password.
- YOUR SUBMISSIONS, INCLUDING OFFLINE SUBMISSIONS. In response to our inquiries or otherwise, you may provide certain data, information and other content to us, whether through our website(s), via e-mail or text messaging, through phone calls or other offline means, or otherwise through the Service (collectively, “Submissions”). You represent and warrant that you own, or have all rights necessary to provide us, your Submissions. You further represent and warrant that none of your Submissions will infringe, violate or misappropriate any intellectual property right or other right of any third party, be unlawful or defamatory, or be invasive of another’s privacy. You hereby grant and shall grant Persistence Plus a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, fully sublicensable (through multiple tiers) and transferable right and license, without additional consideration to you or any third party, to use, reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise exploit such Submission (including any ideas, concepts, know-how, techniques or methodologies incorporated therein), in any format or media now known or hereafter developed, in connection with the Service or otherwise in connection with Persistence Plus’s businesses and the businesses of its successors and assigns, or for the purposes of facilitating or conducting academic research. Without limiting the foregoing, you understand and agree that Persistence Plus shall have the right to reformat, excerpt, or translate any of your Submissions.
COPYRIGHT INFRINGEMENT CLAIMS. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that material available on the Service infringes your copyright, you (or your agent) may send to Persistence Plus a written notice by mail, e-mail or fax, requesting that Persistence Plus remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Persistence Plus a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Margaret Jaques-Leslie as follows: By mail to Margaret Jacques-Leslie, Persistence Plus, 50 Terminal Street, Building 2, Suite 716, Charlestown, MA 02129 or by e-mail to Margaret at firstname.lastname@example.org.
- FANS. You will have the option to (but are not required to) designate one or more individuals whom Persistence Plus may contact and provide certain information to in order to assist you with your academic performance and efforts to complete your postsecondary studies (your “Fans”). If you designate a Fan, you represent and warrant that (a) you have previously (i.e., prior to such designation) notified such Fan that you will provide us with his or her information (including mobile phone number and/or e-mail address) and that we may be contacting him or her; (b) you have received the Fan’s permission to provide us with his or her information for our use in connection with providing services to you, including by contacting him or her; and (c) you hereby authorize Persistence Plus to disclose to the Fan the fact that you are participating in this program, and any information about or related to your goals that you submit to or through the Service, or otherwise as part of a Submission, and have elected to share with your Fan(s). After you designate a Fan(s), you acknowledge that we may contact such Fan(s) by email or otherwise to request such Fan’s consent to send him or her further communications. Fans may opt out of receiving communications from us by contacting us as set forth in Section 22 below. A Fan who no longer wishes to receive further text messages from us may also reply STOP to any text message we send.
- WARRANTY DISCLAIMER. You acknowledge and agree that (a) we have no special relationship with or fiduciary duty to you; (b) we have no control over, and no duty to take any action regarding any of the following: (i) what Content you access via the Service, (ii) what effects the Content may or may not have on you, (iii) how you may interpret or use the Content, or (iv) what actions you may take as a result of having been exposed to the Content; (c) we are not responsible or liable for your having acquired or not having acquired Content through the Service; (d) we are not responsible or liable for the accuracy of any Content; (f) we make no representations concerning the Service or any Content contained in or accessed through the Service; and (e) without limiting the foregoing, we are not responsible for any materials made available through or in connection with the Service by third parties.THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, PERSISTENCE PLUS, THE RELATED ENTITIES, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS OF PERSISTENCE PLUS AND THE RELATED ENTITIES, DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT: (A) YOUR USE OF THE SERVICE WILL RESULT IN ANY SPECIFIC OUTCOME OR HAVE ANY EFFECT ON YOUR ACADEMIC PERFORMANCE; (B) THE SERVICE WILL BE SECURE OR AVAILABLE IN AN UNINTERRUPTED MANNER AT ANY PARTICULAR TIME OR LOCATION; (C) THE SERVICE OR CONTENT IS ERROR-FREE, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) ANY CONTENT IS FREE OF BUGS, VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL CODE OR COMPONENTS (“HARMFUL CODE”); OR (E) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL PERSISTENCE PLUS, THE RELATED ENTITIES, OR THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS OF PERSISTENCE PLUS OR THE RELATED ENTITIES, BE LIABLE WITH RESPECT TO THE SERVICE, THE CONTENT, OR THE SUBJECT MATTER OF THESE TERMS OF SERVICE, WHETHER UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ANY AMOUNT IN EXCESS OF THE GREATER OF ONE HUNDRED U.S. DOLLARS ($100) (IN THE AGGREGATE); (B) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (C) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (D) FOR ANY HARMFUL CODE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (E) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
- INDEMNITY. To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless Persistence Plus, the Related Entities, and the officers, directors, employees, and agents of Persistence Plus and the Related Entities, from and against all claims, losses, liabilities, damages, costs and expenses (including attorneys’ fees) arising out of or related to: (a) your use of, or activities in connection with, the Service or the Content (including all Submissions); (b) any violation or alleged violation of these Terms of Service by you; or (c) any acts or omissions of your Fans.
- THIRD PARTY CHARGES. We do not charge you any fees in connection with your use of the Service. However, if you have provided your mobile telephone number to us, the Service may send text messages to that mobile telephone number. Message and data rates may apply. You are responsible for any third party costs, charges or other expenses you incur in connection with your use of the Service, including any amounts charged to you by your mobile service carrier for text messages and/or e-mail messages that are sent by us or sent by you to us. To stop receiving text messages from us, you may reply STOP to any text message we send. For help, reply HELP to any text message we send.
- FILTERING. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Persistence Plus does not endorse any of the products or services listed on such sites.
- TERMINATION. We may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately (which may result in the forfeiture and destruction of any information you have provided us), without liability to you or any other person. If you wish to discontinue use of the Service, you may do so by contacting us as set forth below. All provisions of the Terms of Service which by their nature should survive termination shall survive termination, including Sections 1 through 5, 9 through 11, and 15 through 18.
- JURISDICTIONAL ISSUES. The Service is controlled or operated (or both) from the United States, and is not intended to subject Persistence Plus to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or part, to any person, geographic area or jurisdiction that we choose.
- DISPUTE RESOLUTION. A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any cause of action by you arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. These Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, and the United States of America. For all purposes of these Terms of Service, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the District of Massachusetts. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including this Section.
- INTEGRATION AND SEVERABILITY; WAIVER; CAPTIONS AND INTERPRETATION; MISCELLANEOUS. The Terms of Service are the entire agreement between you and us with respect to the Service, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect thereto. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Terms of Service shall be construed as if followed by the phrase “without limitation.” Persistence Plus will not be responsible for any failure to fulfill any obligation due to any cause beyond its control. These Terms of Service do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Persistence Plus.
- ASSIGNABILITY. You may not assign, transfer or delegate any or all of your rights or obligations hereunder without our express prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
- MODIFICATIONS. Persistence Plus reserves the right to modify these Terms of Service at any time by notifying you of such modifications by any reasonable means, including by posting a revised Terms of Service through the Service; you should periodically visit this page to review the most current Terms of Service; the “LAST UPDATED” legend above indicates when these Terms of Service were last changed. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms of Service containing such changes, or otherwise notified you of such changes. By using the Service following any such changes, you agree to be bound by such revised Terms of Service.
- NOTICES. Notices to you (including notices of changes to these Terms of Service) may be made via posting to the Service or by e-mail (including in each case via links), or by regular mail.
- CONTACT. You may contact us at the following address: Persistence Plus, LLC., P.O. Box 425454, Cambridge, MA 02142, or via e-mail at email@example.com.
Creative Commons attribution of background image: Sourced from “College of DuPage 48th Annual Commencement Ceremony 2015 230” and “College of DuPage 48th Annual Commencement Ceremony 2015 230” by COD Newsroom, used under CC 2.0 / Color enhanced from originals and photos combined.