End User License Agreement
IMPORTANT-- READ THE TERMS OF THIS AGREEMENT (“LICENSE AGREEMENT”) CAREFULLY BEFORE USING THESE SERVICES AND THIS SOFTWARE. BY USING THESE SERVICES AND THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND UNCONDITIONALLY BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
For purposes of this License Agreement, the following terms will have the following meanings:
“Account” means the Turning Account system, available for both presenters and participants (including Learners and Instructors), that connects an Authorized User to Turning Technologies products. Turning Accounts provide a unique identifier for each Authorized User and can be tied to all software accounts and response devices.
“Activation Code” has the meaning set forth in Section 3 of this License Agreement.
“Authorized User” (sometimes referred to herein simply as a “User”) means any person designated to access and use the Turning Software, Third Party Software or Services, including, without limitation, if such authorization has occurred as a result of a separate agreement between Turning and a third party (including, without limitation, a business entity, school system, or education institution) (“Client”) designating the Authorized User as an authorized user of the Turning Software, Third Party Software or Services. By way of clarification, Authorized Users include Learners and Instructors.
“Client” has the meaning in the previous definition.
“Contract Period” has the meaning set forth in section 1(c) of this License Agreement.
“Indefinite Term” has the meaning set forth in section 1(b) of this License Agreement.
“Initial Period” has the meaning set forth in section 1(c) of this License Agreement.
“Instructors” means teachers/professors/instructors who are Authorized Users and who have adopted certain specified textbooks or other learning materials for use in the classes they teach, or other teachers of seminars using the Services.
“Learners” means an Authorized User of an Account for purposes of learning or assessing in any capacity, including, without limitation, students, employees of Clients, and/or attendees of seminars.
“License Fees” has the meaning set forth in section 3(a) of this License Agreement.
“Licensee Termination Notice” has the meaning set forth in section 1(c) of this License Agreement.
“Limited Term” has the meaning set forth in section 1(c) of this License Agreement.
“Renewal Period” has the meaning set forth in section 1(c) of this License Agreement.
“SaaS Services” means the Turning-hosted and Internet-accessible services that Client or the Authorized User is licensed to use pursuant to this License Agreement and all related interfaces, software, extensions, routines, and programs as the same are made accessible to Client by Turning via the Internet as part of the Services.
“Services” means, collectively, the SaaS Services and those services to be performed by Turning, including, without limitation, by agreement with Client.
“Software” means, collectively, the Turning Software and, if applicable, Third Party Software. For purposes of clarification, the term “Software” also means and includes Data Files (defined below in the ExamView® Learning Series section of this License Agreement).
“Term” has the meaning set forth in section 1(a) of this License Agreement.
“Terms” means these listed terms and conditions as set forth in this License Agreement.
“Third Party Software” means any third-party software solutions provided or made available as part of the Services to Client or to an Authorized User, as well as all media, documentation and data made available that is related to such software.
“Turning” means Turning Technologies, LLC, an Ohio limited liability company.
“Turning Software” means any Turning Technologies software provided as part of the Services to Client or to an Authorized User and all fixes, releases, updates, modifications and additions to such software that are provided by Turning to Client or to an Authorized User, as well as all media, documentation, and data made available by Turning that is related to such software.
“You” or “you” means the Authorized User using the Services and Software, and agreeing to this License Agreement.
THROUGH TURNING’S ACCOUNT SYSTEM, A UNIQUE IDENTIFIER IS PROVIDED FOR EACH AUTHORIZED USER AND CAN BE TIED TO ALL TURNING SOFTWARE ACCOUNTS AND RESPONSE DEVICES ASSOCIATED WITH YOU. TURNING ACCOUNTS REQUIRE USERNAME AND PASSWORD VERIFICATION, ENSURING PROTECTION OF ELECTRONIC RECORDS, INCLUDING PARTICIPANT AND SESSION. AS A CONDITION OF USING THE SERVICES AND THE SOFTWARE, YOU SHALL GUARD THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD.
In registering for the Services, you agree to: (1) provide true, current, and complete registration data; and (2) maintain and promptly update the registration data to keep it true, current, and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Turning immediately of any unauthorized use of your password or any other breach of security. You agree not to create or access an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use the Turning Services or Software if you have been previously removed by Turning, or if you have been previously banned from any of the Services or Software.
a. The term “Term” means the term and duration of the license under section 2 of this License Agreement (or the duration of any other right of or granted to you under this License Agreement), which is either the Indefinite Term (as defined in section 1(b) of this License Agreement), or the Limited Term (as defined in section 1(c) of this License Agreement), whichever is applicable to the license granted to you or the Client, as applicable, under this License Agreement.
b. If you (or the Client, as applicable) obtained the Software from Turning or an authorized agent or distributor of Turning or are using the Software or Services expressly on the condition that the license is granted for an indefinite time (which shall be the case if the license is described or identified as “perpetual” or something similar), the term “Term” means the duration of time that commences upon your (or the Client’s) acceptance and continues indefinitely until any termination of this License Agreement (the “Indefinite Term”). If the Term is the Indefinite Term then section 1(c) and section 3(c) of this License Agreement have no application.
c. If you (or the Client, as applicable) obtained the Software from Turning or an authorized agent or distribution of Turning or are using the Software or Services for a limited period of time, the term “Term” means the duration of time that commences upon your (or the Client’s, as applicable) acceptance of the license and continues for the duration of such limited period of time (the “Initial Period”) and continues thereafter automatically for consecutive renewal periods of the same duration (each, a “Renewal Period”) (the Initial Period and each Renewal Period individually a “Contract Period”) until the earlier of the following events: (i) you or the Client, as applicable, give timely notice of termination before the end of a Contract Period but only if such written notice of termination is received by Turning no earlier than the ninetieth (90th) day before and no later than the day immediately preceding the end of such Contract Period (the “Licensee Termination Notice”), in which case this License Agreement will terminate at the end of such Contract Period; or (ii) any termination of this License Agreement pursuant to any term of this License Agreement, whichever occurs earlier (the “Limited Term”). If the Term is the Limited Term, section 1(b) and 3(b) of this License Agreement have no application.
2. Grant of License for Authorized Users
Subject to these Terms, Turning grants to you during the Term, and you accept during the Term, (a) a limited, non-exclusive, non-transferable, revocable license to access via the Internet, perform and display the SaaS Services, as hosted by Turning, and (b) (if applicable) a limited, personal, non-exclusive, non-transferable, revocable license to make and use the Turning Software provided to Client by Turning, except that if Turning Software is permanently installed on the hard disc or other storage device of a personal computer (i.e., a single-user computer other than a network server), then the Authorized User of such computer also may copy and use the Turning Software on a portable computer/device, laptop, or home computer, provided only one copy is in use at any given time. If an Authorized User’s authorization to use the Turning Software ceases for any reason (e.g., termination of employment from Client or termination of the Authorized User’s studies at the educational institution that a Learner attends), then such Authorized User’s authority to use the Turning Software shall cease, including, without limitation, any use of the SaaS Services and/or any use on a portable computer/device, laptop, and home computer and Authorized User shall permanently delete all copies of the Turning Software. The Turning Software is in “use” on a computer or device when it is copied or loaded into the permanent (i.e., hard disk or other storage device) or temporary memory (i.e., RAM, flash storage, etc.) of a single computer or other device. A separate license is required for each copy of the Turning Software.
*PLEASE READ IF YOU ARE USING EXAMVIEW®
PERMITTED USES FOR EXAMVIEW® PUBLISHER (TEXTBOOK EDITION) VERSIONS. ExamView®, ExamView® Assessment Suite, or ExamView® Pro software (all part of the Software) are provided to Instructors who have adopted certain specified textbooks or other learning materials for use in the classes they teach. If you are using ExamView®, Turning licenses ExamView® software to you only on the condition that: (a) you have adopted and continue to use the specified text in your class; and (b) you accept all of these Terms. Your installation and use of the Software constitutes your acceptance of these Terms in their entirety. This license does not apply to any publisher content included with ExamView®, ExamView® Assessment Suite, or ExamView® Pro software products (i.e., tests, test banks, and other content files). Use of such content may be restricted by the publisher under terms different than the restrictions which apply to the Software and pursuant to terms and conditions that are different than these Terms. Please consult any copyright notices or other documentation accompanying third party content for a description of such restrictions. You may install and use the ExamView® Test Player (but not the entire ExamView® Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers) solely for use at a single building or campus provided that each Instructor who accesses and uses the Software must have adopted and be using the specified text in his or her class. You may copy the Software for backup and archival purposes, provided that the original and each copy are kept in your possession.
PERMITTED USES FOR EXAMVIEW® RETAIL VERSIONS. If you are using ExamView® (Retail Version), Turning licenses ExamView® Software to you only on the condition that you accept all of these Terms. Your installation and use of the Software constitutes your acceptance of these Terms in their entirety. You may install and use the ExamView® Test Player (but not the entire ExamView® Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers). You may copy the Software for backup and archival purposes, provided that the original and each copy are kept in your possession.
ADDITIONAL PROVISIONS APPLYING TO TURNING’S EXAMVIEW® LEARNING SERIES. If you are using ExamView® Learning Series, Turning licenses ExamView® Software to you only on the condition that you accept all of these Terms. Your installation and use of the Software constitutes your acceptance of all of these Terms in this License Agreement in their entirety. Turning continues to own the intellectual property associated with the Software, including all files/questions contained in your ExamView® package and all other copies that you are authorized to make. If you are installing and using ExamView® data files on behalf of a third party (including, without limitation, your employer), then you warrant and represent that you have the authority to accept this license (and all of its terms and conditions) on such third party’s behalf, that such third party will be bound by this License Agreement. You may install and use the files contained in your ExamView® package and any files that you are authorized by this License Agreement to make (also referred to herein as “Data Files”) on the hard disks of a single standalone computer (you may install them on both an office and a home computer provided that both are for your personal use and will not be used simultaneously by other instructors). If you have acquired Data Files pursuant to a multiple-user site license, and your invoice so indicates, you may install and use the Data Files on the hard disks of standalone computers up to the number of computers specified on the invoice. You may install the Data Files on a network server for access by multiple computers if a server license is identified on your invoice. You may use the Data Files within Turning’s programs, and you may use the Data Files within third-party software. In addition, you may use the Data Files to create paper tests. In any case, the Data Files and tests derived from them may only be used by individuals at the building or in the district or campus as specified by the multiple-user site license. If you have acquired the Data Files pursuant to a non-academic license as specified on the invoice, the Data Files may be used to present tests and study guides concurrently to multiple students, up to the number of students specified on the invoice. Data Files includes the assessment questions provided as part of the ExamView® package. You may add questions to or delete questions from the Data Files and you may use the Data Files to compose tests. You acknowledge and agree that the Data Files, as they may be altered by you, and the tests composed by you through the use of the Data Files shall constitute “derivative works” for copyright purposes and as such term is understood under the Copyright Act. Your use of said derivative works based on Data Files shall be subject to the permission set forth in this License Agreement and all of the restrictions set forth in this License Agreement.
You acknowledge that since the Internet is neither owned nor controlled by any one entity, Turning makes no guarantees that any Authorized User will be able to access the Services at any given time, and except as otherwise specifically provided herein, Turning will not be liable to an Authorized User or Client, if applicable, for failure of accessibility to the Services.
You acknowledge and agree that the Software and Services must be used in a proper operating environment for the Software and in accordance with the then-current environmental standards and configuration requirements of Turning (and applicable third-party vendors as to Third Party Software) to ensure the proper operation of the Software and Services.
3. License Fees and Activation
a. If applicable, you are obligated to pay (or the Client, if applicable, is obligated to pay) all license fees and any other payment agreed to be made for, or due for, the granting of the license by Turning and rights in this License Agreement to you or the Client for the Term (collectively, the “License Fees”). You or the Client, as applicable, shall pay all License Fees in immediately available indefeasible unconditional funds without any set-off or deduction. All License Fees are exclusive of any taxes or other governmental or governmentally or legally imposed charges, fees, costs, or expenses, all of which shall be due in addition to the License Fees. Any amount of any License Fee that is unpaid when it is due shall accrue interest from the date it is due until Turning’s receipt of the payment of such amount at the rate of the lower of (i) one and one-half percent (1.5%) per full or partial calendar month or (ii) the highest enforceable rate of interest under applicable law. All such interest shall be paid simultaneously with the payment of the unpaid amount on which such interest accrued.
b. In the event that the Term is the Indefinite Term, the License Fees, if applicable, are due in total at the time of your (or the Client’s) acceptance pursuant to the applicable written agreement for licensing the Software or Services, or such other due date(s) as Turning expressly agreed to otherwise in a written agreement. If all or any part of the License Fees has not been paid or received by Turning, Turning has the right to terminate this License Agreement and the license and rights to you (and the Client, if applicable) at any time with immediate effect. Tuning may, if and as decided by Turning in its discretion, permit you or the Client, as applicable, to cure such non-payment to avoid such termination.
c. In the event that the Term is the Limited Term, the License Fees for the Initial Period are due in total at the time of your (or the Client’s) acceptance pursuant to the applicable written agreement for licensing the Software or Services and the License Fees for a Renewal Period are due on the first day of such Renewal Period. If all or any part of the License Fees for a Renewal Period has not been paid or received by Turning, Turning has the right to terminate this License Agreement and the license and rights to you (and the Client, if applicable) at any time with immediate effect. Tuning may, if and as decided by Turning in its discretion, permit you or the Client, as applicable, to cure such non-payment to avoid such termination.
ACTIVATION, REGISTRATION. FOR FULL FUNCTIONALITY OF THE SOFTWARE, ACTIVATION OF THE COPY OF THE SOFTWARE AND ANY UPDATE OBTAINED BY YOU MAY BE REQUIRED. YOU AGREE THAT COMPLIANCE WITH ANY REQUIRED ACTIVATION IS A CONDITION FOR YOUR LICENSE UNDER THIS LICENSE AGREEMENT BEING EFFECTIVE. Turning may offer different forms of activation of the Software, such as by providing you with a unique activation key or USB or similar data carrier device including a validation key (any such form of activation, the “Activation Code”). The Activation Code will be owned by Turning. You shall not use any Activation Code other than an Activation Code delivered by Turning to you in accordance with the agreement between Turning and you or the Client, as applicable, for activating the Software licensed hereunder. You are (and the Client shall be, if applicable) responsible and liable for any and all consequences arising from or related to any disclosure, loss, or misuse of any Activation Code provided by Turning to you. You shall register with Turning as an end user of the Software as instructed during the course of the installation of the Software or otherwise.
You have no ownership rights in the Software. Client has no ownership rights in the Software. Rather, you have a license to use the Software in accordance with these Terms so long as this License Agreement remains in full force and effect. Ownership of the Turning Software (and any related documentation or ancillary materials) and all intellectual property rights therein shall remain at all times with Turning. Unless otherwise agreed to by Turning in writing, any other use of the Turning Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this License Agreement.
If applicable, any third-party hardware, service and Third Party Software sublicensed by Turning hereunder is subject to Turning’s then-current terms of applicable license agreements and the terms and conditions of the applicable third-party manufacturer and/or licensor of such third party hardware or Third Party Software. IF APPLICABLE, ANY THIRD-PARTY HARDWARE AND THIRD PARTY SOFTWARE MADE AVAILABLE BY TURNING IS SUBLICENSED OR OTHERWISE PROVIDED WITHOUT WARRANTY BY TURNING AND “AS IS.”
5. Copyrights; Trade Secrets
The Services and Turning Software (and all related documentation) is protected by worldwide intellectual property laws, including, without limitation, United States copyright law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by Turning. You may not remove any proprietary notice of Turning from any copy of the Turning Software or any related documentation.
You shall not copy, use or exploit the Services and the Turning Software other than as permitted by this License Agreement. You shall not modify, change, alter, translate, creative derivative works from, produce a source listing, decompile, disassemble, or otherwise reverse engineer the Services or the Turning Software, or attempt to do the same or assist another in the same. Without the prior written consent of Turning, you shall not use the Services or the Turning Software to provide services for any third party. You shall not interfere, or attempt to interfere, with the Services in any way. You shall not engage in any fraudulent, illegal or unauthorized use of the Services or the Software. You shall not introduce into or transmit through the Services or Software any virus, worm, trap door, back door, timer, clock, counter or other harmful or limiting routine, instruction or design.
Without the prior written consent of Turning, you shall not copy, distribute, sublicense, transfer, modify, create any derivative work based on, re-sell, rent, lease, lend, permit third-party access to, sublicense or otherwise transfer rights or assign the Turning Software or Services or any portion or copy of the Turning Software or Services, to any third party (for purposes of clarification, the foregoing will not restrict Client from using a third party contractor or outsourced service provider from using the Turning Software or Services solely for the benefit of Client and subject to all of these Terms, provided that Client remains responsible for all such use).
You shall not use, or permit any third party to use, the Turning Software or Services for the purpose of developing, selling, distributing, or sublicensing any software or service that competes with the Turning Software or Services. Unless expressly set forth in these Terms (including the permitted use of ExamView® as provided above), you shall not install or use the Turning Software on a server to allow concurrent access from or on multiple computers, use the Turning Software with a multiplexor or use the Turning Software in any way otherwise designed to allow multiple computers to access the Turning Software concurrently. You shall not create Internet “links” to the Services or “frame” or “mirror” any content of the Turning Software or Services on any other server or wireless or Internet-based device.
You shall not remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Services or the Software.
You acknowledge that the Services and Turning Software contain proprietary trade secrets of Turning and you hereby agree to maintain the confidentiality of the Services/Turning Software using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information, but in no case less than a reasonable degree of care.
8. Client/Authorized User Responsibilities
Client or Authorized User is solely responsible for the accuracy of all data and information entered into the Services and the Software. If Client and/or Authorized User retains or shares student data or information that constitutes “personally identifiable information” under the Family Educational Rights and Privacy Act (“FERPA”), Turning and Client/Authorized User shall use reasonable methods to ensure to the greatest extent practicable that such student data is protected in a manner that harmonizes with FERPA. Turning has been independently verified for FERPA compliance. Turning Cloud harmonizes with FERPA respecting the collection, use and protection of education records. If FERPA applies to you, the following apply. THE APPLICABLE EDUCATION INSTITUTION RETAINS OWNERSHIP OF ANY EDUCATION RECORDS MAINTAINED BY TURNING CLOUD. EDUCATION RECORDS SHALL ONLY BE USED BY THE APPLICABLE EDUCATION INSTITUTION OR AN AUTHORIZED USER AS DIRECTED BY SUCH EDUCATION INSTITUTION OR STUDENT VIA A SIGNED CONSENT. EDUCATION RECORDS SHALL BE DESTROYED BY TURNING OR RETURNED TO THE EDUCATION INSTITUTION IF THE EDUCATION INSTITUTION’S AGREEMENT WITH TURNING IS TERMINATED. THE EDUCATION INSTITUTION SHALL STORE EDUCATION RECORDS IT CREATES AND MAINTAINS ON ITS OWN EXCHANGE SERVER SYSTEM. EDUCATION RECORDS SHALL BE STORED ON SERVERS THAT ARE ENCRYPTED, AND WITH NAME AND PASSWORD PROTECTION. THE EDUCATION INSTITUTION SHALL ALLOW STUDENTS ACCESS TO EDUCATION RECORDS UPON REQUEST OF THE STUDENT. ALL REQUESTS TO EDUCATION RECORD ACCESS BY STUDENTS SHALL BE DIRECTED TO AND CONTROLLED BY THE EDUCATION INSTITUTION – AND NOT TURNING.
9. User Code of Conduct
As a condition of use, you agree not to use the Turning Services or Software for any purpose that is prohibited by these Terms or by applicable law. Do not post, or permit others to post, content on the Turning Services or Software or on your profile that: (a) encourages illegal activities, is fraudulent, or is unlawful; (b) insults, defames, harasses, or threatens others; (c) violates the copyright or intellectual property or privacy rights of others; (d) contains obscene, vulgar, pornographic, or libelous material; (e) harms or impersonates others, including other Authorized Users; or (f) advertises or sells a product or service. If you are a Learner, do not reproduce content from your course or other Learners unless permitted by the Instructor. Do not share the solutions to assignments with others unless this is expressly authorized by the Instructor. Do not submit the work of others as your own work. Respect the privacy of other Authorized Users. Respect the diversity of opinions and cultures that will be presented by other Authorized Users. Do not attempt or engage in, any potentially harmful acts that are directed against the Turning Services or Software, including, without limitation, by violating or attempting to violate any security features of the Turning Services or Software, introducing viruses, worms, or similar harmful code into the Turning Services or Software, or interfering or attempting to interfere with use of the Turning Services or Software by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Turning Services or Software. If you believe that someone has violated this code of conduct, begin by notifying the Instructor of the Course. If the issue is not addressed by the Instructor to your satisfaction, contact firstname.lastname@example.org with your concerns.
As such, Turning may, but is not obligated to, monitor or review the Turning Services, Software and/or content posted by you or any Users at any time. Without limiting the foregoing, Turning shall have the right, in its sole discretion, to remove any of the content posted by you for any reason (or no reason), including if such content violates these Terms or any applicable law. Although Turning does not generally monitor user activity occurring in connection with the Turning Services or Software, if Turning becomes aware of any possible violations by you of any provision of these Terms, Turning reserves the right to investigate such violations, and Turning may, at its sole discretion, terminate your license to use the Turning Services or Software, or change, alter or remove your content, in whole or in part.
10. Information We Collect, Monitor, and Track through the Software
Turning always strives to improve the Services and the Software and other related products. Turning collects both “personal information” and “non-personal information” about Authorized Users of the Software. Turning has incorporated certain analytics in the Services and Software that enable Turning in its discretion, to collect and use certain technical and related non-personal information, including information about your computer such as what operating system resides on your computer, what version of Microsoft Office you are using, what polling environment within the Software you select and how often polling takes place, and other technical and related information. Turning may also gather non-personal information that indicates what features within the polling application are used along with question-types authored and the types of reports you generate from the Software. In addition, Turning may grab “crash reports” from your machine should the Services be interrupted or crash so Turning can ascertain the cause of the interruption or crash and provide appropriate resolution. At its discretion, Turning may provide third parties with any or all of this non-personal information. You agree that Turning may collect and use all of this non-personal information and any technical information about your computer, system, and peripherals that is gathered periodically. You agree that Turning may use this non-personal information provided it is in a form that does not personally identify you.
You acknowledge that certain personal information will be shared with Turning in conjunction with the use of the Services and Software, and that such personal information will be stored on Turning’s server(s) (subject to the other provisions of these Terms). This personal information varies depending on the Turning application, the Client, university or school, and the type of user in question, but it may include such information as name, email address, user ID, student ID, learning management system ID, account password, user market (e.g., K-12, higher education, corporate, government, or rental), and country. Personal information is generally used to associate you to your license, associate you to an answer which is transmitted to the desktop software and tabulated in the desktop for a grade, to enroll you in a course, to match your account to entries in a learning management system, and to send you the current question requesting your answer.
You grant Turning a worldwide, royalty-free, non-exclusive license to store, use, distribute, reproduce, adapt, and process such personal information in conjunction with your use of the Services and Software solely for the purpose for which such content was submitted or made available. In connection with the purposes for which such personal information was submitted or made available, Turning may transmit such content across public networks, and you agree that the license herein permits Turning to take such actions.
If you are located in the European Union and the European Economic Area, you agree with respect to the processing of “personal data” in the meaning of Article 2(a) of Directive 95/46/EC, that Turning shall be considered a “processor” in the meaning of Article 2(e) of Directive 95/46/EC, and your institution, such as a school or university, shall be considered to be a “controller” in the meaning of Article 2(d) of Directive 95/46/EC. Turning processes all personal data on behalf of and on instructions from your institution.
Turning implements appropriate technical measures to protect personal information against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing.
Notwithstanding anything to the contrary herein, at Turning’s discretion some or all personal information furnished by you or your designees in conjunction with your use of the Software may be eradicated by Turning from all of its systems, including, without limitation, from any Turning back-up system, twelve (12) months after the personal information is initially stored and/or such testing data and/or other educational data/content has been collected in conjunction with the Services and Software. In addition, Turning, at its discretion, may archive all personal information and content from Accounts that have been inactive for sixty (60) days or more. You expressly acknowledge that Turning shall not be liable for any personal information or content associated with an account which has been so archived.
11. Responsibility for Content
You acknowledge that all content posted by a party other than Turning (including a User) is the sole responsibility of the party from whom such content originated. This means that you, and not Turning, are entirely responsible for all content that you upload, post, email, transmit or otherwise make available through the Turning Services or Software. Other Authorized Users of the Turning Services or Software, and not Turning, are similarly responsible for all content posted by them through the Turning Services or Software.
You acknowledge that Turning has no obligation to pre-screen content (including, without limitation, your content and other Authorized User content), although Turning reserves the right in its sole discretion to pre-screen, refuse, or remove any content that violates any law or regulation, violates these Terms, and/or otherwise creates liability for Turning.
12. “As Is”
TURNING WARRANTS THAT THE SERVICES AND TURNING SOFTWARE WILL FUNCTION, IN EACH CASE, SUBSTANTIALLY IN ACCORDANCE WITH ANY DOCUMENTATION PROVIDED TO CLIENT. OTHER THAN THE FOREGOING, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TURNING DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TURNING DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND/OR SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.
You shall only use the Services and Software for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party.
IN NO EVENT WILL TURNING BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, AN AUTHORIZED USER OR CLIENT) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF TURNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TURNING’S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SERVICES OR SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU TO TURNING FOR THE SERVICES OR THE VALUE OF ANY HARDWARE PURCHASED FROM TURNING AND USED BY YOU IN CONNECTION WITH THE SERVICES AND THE SOFTWARE. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TURNING ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, WITHOUT LIMITATION, CONTENT POSTED BY YOU AND OTHER USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. TURNING ASSUMES NO RESPONSIBILITY FOR CONTENT POSTED BY YOU OR ANY USER THAT VIOLATES THE RIGHTS OF OTHERS, ALL OF WHICH IS EXPRESSLY PROHIBITED BY THESE TERMS. SUCH PROHIBITED CONTENT INCLUDES CONTENT THAT VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, OR THAT DEFAMES OTHERS.
IN SHORT, TURNING ASSUMES NO LIABILITY FOR CONDUCT OF THIRD PARTIES OR OTHER USERS. BY USING THE SERVICES OR ANY SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT TURNING IS NOT LIABLE FOR SUCH CONDUCT OR ACTIVITIES, AND YOU AGREE NOT TO SEEK TO HOLD TURNING LIABLE FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF TURNING SERVICES OR SOFTWARE. YOU UNDERSTAND THAT TURNING DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE TURNING SERVICES OR SOFTWARE.
14. Export Restrictions
IN ADDITION TO THE LAWS, REGULATIONS, GUIDELINES, ORDERS, AND OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION AS SET FORTH HEREIN, YOU SHALL NOT EXPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE AND DOCUMENTATION WITHOUT THE PRIOR WRITTEN CONSENT OF TURNING.
15. Export Control
You may not use or otherwise export or re-export any Turning products except as authorized by United States law and the laws of the jurisdiction in which the Turning product was obtained. Specifically, but without limitation, Turning products may not be exported or re-exported: (a) to any United States embargoed countries currently in effect or as amended or modified from time to time; (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals; (c) to anyone on the United States Department of Commerce Denied Person’s List or Entity List; or (d) to any other person or entity prohibited by United States law. By using Turning products, You affirmatively represent and warrant that You are not located in and/or are not a person or entity referenced in aforementioned prohibitions (a)-(d).
You also affirmatively agree that You will not use Turning products for any purposes prohibited by United States law. Turning products, including but not limited to software, may be subject to United States export control laws such as the United States Export Administration Regulations, and may also be subject to export or import regulations in foreign countries. By downloading Turning software or using Turning products, you affirmatively represent and warrant that you will take any and all necessary actions in order to remain in strict compliance with United States export regulations. You further acknowledge and affirmatively agree that you have the responsibility to obtain any and all necessary licenses to export, re-export, or import Turning products and/or software.
This License Agreement shall remain in effect until it is terminated. You may terminate this License Agreement at any time by destroying or returning to Turning all copies of the Software and Documentation in your possession or under your control. Turning may terminate this License Agreement at any time for any reason, including, but not limited to, if Turning finds that you have violated any of these Terms or any other agreement with Turning. Turning has the right at any time to terminate this License Agreement, and all related licenses granted hereunder to access the Services and Software. Upon notification of termination, you agree to destroy or return to Turning all copies of the Software (and related documentation, if applicable) and to certify in writing that all known copies, including backup copies, have been destroyed. Termination by Turning of partial Services/Software will include removal of access to such Services and Software and barring further use of such Services and Software. Termination of all Services and Software will likely include deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof), including content posted by you. Upon termination of any portion of the Services and Software, your right to use such Services and Software will automatically terminate immediately. Turning will not have any liability whatsoever to you for any suspension or termination, including for deletion of content posted by you. All provisions relating to confidentiality, proprietary and intellectual property rights, and non-disclosure shall survive the termination of this License Agreement.
You agree to indemnify, defend, and hold Turning, and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors, harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) content posted by you; (b) your use of, or inability to use, the Turning Services and Software; (c) your violation of these Terms; (d) your violation of any rights of another party, including any User; and/or (e) your violation of any applicable laws, rules or regulations. Turning reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Turning in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, these Terms, or your access to the Turning Services and Software.
Turning will defend or settle, at its option and expense, any action brought against you alleging that the Services or Turning Software infringes or misappropriates any third party intellectual property rights. Turning will pay any costs incurred by you that are attributable to the infringement action. You understand and agree that as conditions to Turning’s obligations under this section you must (a) notify Turning promptly in writing of the action; (b) provide to Turning all reasonable information and assistance to defend or settle the action; and (c) grant Turning sole authority and control of the defense or settlement of the action. If an infringement claim is made, Turning may, at its option and expense (i) replace or modify Software so that it becomes non-infringing; (ii) procure for you the right to continue using Software; or (iii) require the return of the Software and refund to you any License Fees paid, less a reasonable amount for use. Turning has no liability to you if the infringement claim is based upon the combination of the Services and Software with any product not furnished by Turning or modification of the Services and Software other than by Turning. THIS SECTION IS SUBJECT TO SECTIONS 10 AND 11 ABOVE AND SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION RELATING TO THE SOFTWARE.
You acknowledge that your failure to comply with any of the provisions of this License Agreement relating to confidentiality, proprietary and intellectual property rights, and non-disclosure will irreparably harm Turning and its affiliates, and that Turning and its affiliates will not have an adequate remedy at law. Therefore, you acknowledge and agree that Turning and its affiliates will be entitled to injunctive relief in addition to any and all other remedies it may have, at law or in equity.
19. Copyright Infringement; Notice and Take-Down Procedures
If you believe that any content posted through the Services infringes your copyright, you may request that such content be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information:
a. identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work;
b. identification of the content that you believe to be infringing and its location, including a description of the content;
c. your name, address, telephone number and e-mail address;
d. a statement that you have a good faith belief that the complained use of the material is not authorized by the copyright owner, the copyright owner’s agent, or the law;
e. a statement that the information in your claim is accurate; and
f. a statement that “under penalty of perjury,” you declare that you are the lawful copyright owner or are authorized to act on the owner’s behalf.
Turning’s agent for copyright issues related to our Services and any Turning products is Lindsay Czopur, email@example.com; 255 West Federal Street, Youngstown, Ohio 44503, 1-866-746-3015.
In an effort to protect the rights of copyright owners, Turning maintains a policy for the termination, in appropriate circumstances, of users of our Services or any Turning products who are repeat offenders.
20. Governing Law; Jurisdiction
You may not assign this License Agreement or any rights or obligations hereunder without obtaining the prior written consent of Turning. This License Agreement shall be governed by the laws of the State of Ohio, without giving effect to principles of conflict of laws. Any dispute between the parties connected with this Agreement shall be submitted to the sole jurisdiction of the courts of the State of Ohio, County of Mahoning, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Ohio. Each of the parties consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
This License Agreement (and, if applicable, the Turning Technologies Services Agreement) contains the complete agreement between Turning and you with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written document issued by you in relation to the Software shall be of no effect. The failure or delay of Turning to exercise any of its rights under this License Agreement shall not be deemed a waiver of those rights. If any provision of this License Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this License Agreement will remain in full force and effect. In the event and to the extent that any part or provision of this License Agreement is invalid or unenforceable in any particular state or jurisdiction, such part or provision shall be interpreted both to be valid and enforceable and to conform to the greatest extent possible to the intent and purpose of such part or provision as set forth in this License Agreement.
We may amend this End User License Agreement from time to time. If we make material changes to this License Agreement, we may notify you by posting the change on the Turning Services or in the Software, or by sending you an email at your primary email address as specified in your Account. Any changes to this License Agreement will be effective immediately for new users of our Application; otherwise such changes will be effective upon the earlier of fourteen (14) calendar days following our dispatch a notice to you or fourteen (14) calendar days following our posting of a notice on the Services. You are responsible at all times for updating your Account to provide to us your most current email address. If the last email address that you have provided to us is not valid, or for any reason is not capable of delivering the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes. Continued use of our Services and Software following notice of such changes will indicate your acknowledgement of and your agreements to be bound by such changes. Except as otherwise provided in this License Agreement, no amendment to this License Agreement will be valid unless in writing with valid signatures by the parties.
If you have questions regarding this License Agreement, or wish to obtain additional information, please send an e-mail to firstname.lastname@example.org or write us at:
ATTN: EULA/Legal Services
255 West Federal St.
Youngstown, OH 44503