Accent Media Group

K To The 8^th Power Terms Of Use

Last Updated: July 14th, 2009
PLEASE READ CAREFULLY BEFORE USING THIS LEARNING MANAGEMENT SYSTEM ("LMS"). BY ACCESSING AND USING THE LMS, YOU AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE, DO NOT USE THIS LMS.

Grant of Rights
Pursuant to an agreement (the "Subscription Agreement") between K to the 8^th Power, Inc. ("K to the 8^th"), or its authorized agent, and the subscribing entity ("Subscriber"), for a subscription to K to the 8^th's Learning Management System ("LMS") and the content included therein ("Content"), K to the 8^th has granted to Subscriber, and the educators, administrators, students and parents authorized under the Subscription Agreement (collectively the "Users"), for the term of the applicable Subscription Agreement, a limited, non-exclusive, terminable, non-transferable license to access K to the 8^th's LMS and the Content subscribed for in the Subscription Agreement, such grant of rights subject to these Terms of Use. If the User is a minor, he or she will be the responsibility of his or her parent/guardian, who will ensure that the User adheres to the provisions herein.

Changes to Terms of Use
K to the 8^th reserves the right to change these Terms of Use from time to time. Such changes will become effective when K to the 8^th posts the revised Terms of Use on K to the 8^th's website ("Website") or LMS. Users should check the Terms of Use from time to time, as they are bound by the Terms of Use posted on the Website or LMS at the time of access. Any revised Terms of Use will supersede all previous versions.

Permitted and Prohibited Uses
All rights not expressly granted to Subscriber and its Users pursuant to the Subscription Agreement are reserved to K to the 8^th, and all uses of the Content by Subscriber and its Users not expressly permitted hereunder are prohibited.

Use for Educational, Non-Commercial Purposes Only. Subscriber and its Users may use the LMS and the Content for bona fide educational purposes only, and may not use them in any commercial or for-profit manner. K to the 8^th reserves the right, in its sole and absolute discretion, to limit Subscriber's and/or any Users' use of the LMS in the event that K to the 8^th, in its sole and absolute discretion, deems Subscriber's and/or such Users' use thereof to be inconsistent with educational purposes, and/or inconsistent with these Terms of Use.

Prohibited Uses. Subscriber will not, and will not permit Users, Subscriber's employees or agents or any third party to: (a) access the Content or LMS except in connection with curriculum or courses for which a student is enrolled ("Curriculum"), (b) use Content except in strict compliance with these Terms of Use, (c) copy, reproduce, modify, alter, transfer, transmit, perform, publish, display, sub-license, distribute, circulate provide access to, rent, or create Derivative Works from the Content or any portion thereof, (d) decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine the source code (or the underlying ideas, algorithms, structure or organization) of the Content or LMS, (e) upload files that contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of the LMS, (f) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the LMS's or Content's control or security systems, nor allow or assist a third party to do so, or (g) use the Content in a manner that disparages the LMS, Content, K to the 8^th or its content providers, or in any manner that K to the 8^th may, in its sole discretion, deem inappropriate.

Remedy. Subscriber and the Users acknowledge and agree that the LMS and the Content possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use, and that unauthorized use may cause immediate and irreparable damage to K to the 8^th for which K to the 8^th would not have an adequate remedy at law. Therefore, Subscriber and the Users agree that, in the event of such unauthorized use, in addition to such other legal and equitable rights and remedies as may be available to K to the 8^th , K to the 8^th will be entitled to injunctive and other equitable relief without the necessity of proving damages or furnishing a bond or other security.

Ownership
As between Subscriber, the Users, and K to the 8^th, the LMS and the Content are the property of K to the 8^th, and are protected by United States and international copyright and trademark law. By using the LMS and the Content, even as permitted by these Terms of User, neither Subscriber nor any of its Users gain any ownership interest in the LMS Content or other intellectual property of K to the 8^th.

K to the 8^th reserves the right to add Content, withdraw Content, modify and/or to offer substitute Content, in its sole discretion, provided that Subscriber will receive reasonable notification concerning any substitution or withdrawal. The features and functions of the LMS may also be updated from time to time by K to the 8^th.

LMS Availability and Support
K to the 8^th does not guarantee availability of the LMS 24 per day, 7 days per week. Unless other support terms are specified by K to the 8^th from time to time, K to the 8^th agrees to provide LMS support during normal business hours Monday through Friday (9:00 a.m. to 6:00 p.m. ET), excepting holidays, solely to assist Subscriber. K to the 8^th will respond to general support issues within 1 business day, after which they will be escalated as may be specified by K to the 8^th from time to time. The contact for escalation of support issues will be as designated by K to the 8^th. Subscriber will be responsible for supporting its Users unless otherwise agreed by K to the 8^th.

Subscriber's Obligations
Equipment. Subscriber will be responsible for all the necessary computer hardware, software, modems, internet connections and other items that are needed for its Users to access the LMS and Content, and all costs associated with such access. The minimum specifications for the equipment needed to use the LMS and Content are set out on the Website at: http://kto8.com/images/uploads/files/Operating_Environments.pdf.

Curriculum Enrollment. Subscriber will provide to K to the 8^th all required information in the format specified by K to the 8^th in order to enroll students and set up accounts for Users.

Compliance with Laws. In using the LMS, Subscriber agrees to comply with federal and state privacy laws, including but not limited to 20 U.S.C. § 1232g, the Family Educational Rights and Privacy Act ("FERPA") and the regulations promulgated under FERPA, and other similar laws, administrative rules and regulations restricting commercial use of student information. Subscriber further agrees to limit access by its employees and agents to educational records containing personally identifiable information to solely those of its employees and agents who have a legitimate educational interest for such information. Subscriber acknowledges and agrees that to the extent that employees and agents of K to the 8^th requires access to student educational records in order to provide educational and/or administrative services on behalf of students, such employees and agents will be deemed to have a legitimate educational interest in accessing such records.

Security and Use of Passwords. Each User will have a valid username and password for the purpose of accessing the LMS and the Content (the "Log-In Information"). Subscriber and its Users must keep all Log-In Information strictly confidential, and all Log-In Information may be used only by the assigned User. Subscriber and its Users are responsible for maintaining the security and confidentiality of all Log-In Information, and for preventing access to the LMS and/or the Content by unauthorized persons using a User's Log-In Information. Unauthorized access to or use of the LMS and/or the Content by someone using a User's Log-In information may be attributed to such User.

Communications from K to the 8^th
K to the 8^th may periodically contact Users for customer service purposes. By accessing the LMS and Content, Users consent to receive such communications. Subscriber will promptly provide K to the 8^th with any and all information regarding its Users and/or use of the LMS and Content by its Users that K to the 8^th reasonably requests. Subscriber agrees that K to the 8^th may reference its business relationship with Subscriber in its marketing or sales materials.

Term; Termination
The term of a subscription will continue for the period of time specified in a Subscription Agreement. In the event that Subscriber breaches any term of the Subscription Agreement, or Subscriber and/or any of its Users breach these Terms of Use ("Event of Default"), and such Event of Default is not cured within 10 days after receipt of notice thereof from K to the 8^th, K to the 8^th may terminate the Subscription Agreement in whole or in part immediately upon written notice to Subscriber. Notwithstanding the foregoing, there will be no cure period for any Event of Default that is not curable or for violation of the Prohibited Uses specified above.

Effect of Termination
In the event of expiration or termination of a Subscription Agreement for any reason: (a) all rights granted under the applicable Subscription Agreement will terminate and the Subscriber will not permit Users, Subscriber's employees or agents, or any other third party to access the LMS or the Content, and (b) Subscriber and the Users will cease using, or destroy and certify destruction of, all Content that may have been downloaded from the LMS. Termination of a Subscription Agreement will not relieve Subscriber of any obligation or liability under Subscription Agreements still in effect or, nor will it affect or impair the rights of K to the 8^th arising under the applicable Subscription Agreement prior to such termination, except as expressly provided herein.

Audit
K to the 8^th will have the right, with 10 days prior notice, to audit Subscriber's use of the LMS and Content at the Subscriber's location(s). Subscriber will also have the right, on providing reasonable notice to K to the 8^th, to request reports that are reasonable and relevant to monitoring use of and access to the LMS and Content offered under a Subscription Agreement. If any audit determines that Subscriber has not complied with the terms of the applicable Subscription Agreement, Subscriber will promptly pay K to the 8^th any amount that is due. In the event the audit determines a shortfall in the amount paid K to the 8^th in excess of 5%, Subscriber will also reimburse K to the 8^th for its cost in conducting the audit.

Representations/Indemnity
Subscriber represents and warrants that: (a) it has full power and authority to enter into the Subscription Agreement, and to agree to all the terms and conditions contained therein and in these Terms of Use, and has received all parental and other permissions required to permit K to the 8^th to obtain and retain information (including personal information) from Users; (b) only Subscriber or its Users will access the LMS and Content; (c) Subscriber and its Users will at all times use the LMS and Content only as expressly permitted by the Subscription Agreement and these Terms of Use; (d) in the event that Subscriber requests that K to the 8^th customize the interface with Subscriber's trade name, trademarks or logos, and/or digitize and/or encode and/or host any of Subscriber's content on the Content and/or the Subscriber has the right to so use and exploit any and all such trade names, trademarks, logos and content, including without limitation any and all underlying elements (the "Subscriber IP"), and (e) the Subscriber IP, any content, materials, and/or information contributed by Users, and any revisions to the Content by Users does not and will not contain any libelous, unlawful or infringing materials or content, will not infringe upon any party's proprietary rights, including without limitation statutory or common-law copyright, trademark and right of privacy, and will not violate any law, regulation or right of any kind whatsoever or give rise to any actionable claim or liability.

Subscriber and its Users will defend, indemnify and hold K to the 8^th , its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, officers, shareholders, employees, agents and representatives of each of the foregoing, harmless against and from any and all claims, damages, liabilities, costs and expenses arising out of any violation by Subscriber and/or its Users of these Terms of Use, any downloading of the Content, any modification or edit made to any portion of the Content, and the use of any portion of the Content with products or services not supplied by K to the 8^th.

All representations, warranties, and indemnities will survive the expiration or prior termination of the Subscription Agreement.

No Warranties
EXCEPT FOR ANY EXPRESS WARRANTIES GIVEN IN THIS AGREEMENT: (a) THE LMS AND CONTENT PROVIDED UNDER A SUBSCRIPTION AGREEMENT ARE PROVIDED "AS IS" TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND (b) K TO THE 8^th, AND ITS LICENSORS, DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, TITLE, NONINFRINGEMENT, COURSE OF DEALING, OR COURSE OF TRADE. EXCEPT AS SPECIFICALLY PROVIDED IN A SUBSCRIPTION AGREEMENT, NEITHER K TO THE 8^th NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE LMS AND CONTENT PROVIDED UNDER A SUBSCRIPTION AGREEMENT WILL MEET ANY REQUIREMENTS OR NEEDS THAT USERS MAY HAVE, OR THAT THE LMS AND CONTENT PROVIDED UNDER A SUBSCRIPTION AGREEMENT WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE LMS AND CONTENT WILL BE CORRECTED, OR THAT THE LMS AND CONTENT ARE COMPATIBLE WITH ANY PARTICULAR OPERATING SYSTEM. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, K TO THE 8^th MAKES NO GUARANTEE OF ACCESS TO OR ACCURACY OF THE CONTENT ACCESSED THROUGH THE LMS. IN NO EVENT WILL K TO THE 8^th BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ALTERNATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE LMS.

Limitation of Liability
FOR ANY BREACH OR DEFAULT BY K TO THE 8^th OF ANY OF THE PROVISIONS OF THESE TERMS OF USE, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, K TO THE 8^th'S ENTIRE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, WILL IN NO EVENT EXCEED THE LESSER OF: (a) THE AMOUNT PAID BY A SUBSCRIBER FOR THE SPECIFIC CURRICULUM THAT IS THE SUBJECT OF THE CLAIM, OR (b) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE AMOUNT PAID BY A SUBSCRIBER UNDER A SUBSCRIPTION AGREEMENT. IN NO EVENT WILL K TO THE 8^th BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST SUBSCRIBER OR THE USERS BY ANOTHER PERSON. K TO THE 8^th WILL BE LIABLE TO SUBSCRIBER AS EXPRESSLY PROVIDED IN A SUBSCRIPTION AGREEMENT, BUT WILL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT OR OTHERWISE TO SUBSCRIBER INCLUDING ANY LIABILITY FOR NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT WILL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION, BY A SUBSCRIBER, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY AND WILL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. THE USERS WILL NOT BE CONSIDERED A THIRD PARTY BENEFICIARY OF ANY OBLIGATION OF K TO THE 8^th TO SUBSCRIBER.

Release
Subscriber and its Users release and waive all claims against K to the 8^th, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing, from any and all claims, damages, liabilities, costs and expenses arising out of Subscriber's and Users' use of the LMS and Content. California residents waive any rights they may have under §1542 of the California Civil Code, which reads: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Subscriber and its Users agree to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect.

Reporting Infringement
By accessing and/or using the LMS and Content, Users agree to report to K to the 8^th all claims or suspected claims of copyright or other infringement of K to the 8^th's intellectual property or other proprietary rights. Claims of infringement should be directed to: legal@kto8.com.

Dispute Resolution
Any controversies between K to the 8^th and Subscriber arising out of or relating to a Subscription Agreement and K to the 8^th and Subscriber or the Users arising out of or relating to these Terms and Conditions that cannot be resolved by internal discussions, will, upon demand of a party involved, be finally settled under the Commercial Rules of the American Arbitration Association ("Rules"), as then in effect, by a single arbitrator appointed in accordance with said Rules. The arbitrator will render a decision not later than 60 days after the matter has been submitted, and such decision will be in writing and will be final and binding on the parties. The decision of the arbitrator may be entered as a final decree or judgment in any court of competent jurisdiction. The arbitration proceedings will be held in Baltimore, Maryland or via teleconference, if permitted. Each party will bear its own costs for the arbitration proceedings. Nothing in these Terms and Conditions will prevent K to the 8^th from applying for injunctive relief in any court of competent jurisdiction.

Miscellaneous
Assignment. These Terms and Conditions and any Subscription Agreement will be binding upon and inure to the benefit of the parties and their permitted assigns and successors in interest. Neither Subscriber nor the Users may assign its rights or delegate its obligations hereunder (by operation of law or otherwise) without the prior written consent of K to the 8^th. These Terms of Use and any Subscription Agreement will be fully assignable by K to the 8^th.

Waiver. The failure of K to the 8^th to enforce its rights under these Terms of Use or a Subscription Agreement at any time for any period will not be construed as a waiver of such rights.

Force Majeure. Failure by K to the 8^th to perform by reason of any law, natural disaster, labor controversy, encumbered intellectual property right, war or any similar event beyond its reasonable control will not be a breach hereof.

Independent Contractor. K to the 8^th and Subscriber are independent contractors with respect to one another, and nothing in these Terms and Conditions or a Subscription Agreement will be interpreted to create any agency, joint venture, employment or partnership relationship.

Applicable Law/Venue. These Terms of Use will be construed and enforced under the laws of the State of Maryland, USA without reference to the choice of law principles thereof. Subscriber and the Users hereby consent to and submit to the jurisdiction of the federal and state courts located in the State of Maryland. Subscriber and the Users waive any defenses based upon lack of personal jurisdiction or venue, or inconvenient forum. If any provision herein is unenforceable, then such provision will be of no effect on any other provision hereof.

Entire Agreement; Amendment. These Terms and Conditions and related Subscription Agreements supersede all proposals, oral or written, all negotiations, conversations, or discussions between or among any of the parties relating to the subject matter of the applicable Subscription Agreement, and all past dealing or industry custom. No changes, modifications or waivers are to be made to these Terms and Conditions or a Subscription Agreement unless evidenced in writing and signed for and on behalf of K to the 8^th.

Survival. The Effect of Termination, Audit, Representations/Indemnity, No Warranties, Limitation of Liability, Release and Dispute Resolution paragraphs of these Terms of Use will survive any termination or expiration of a Subscription Agreement.