Date of Last Revision: September 1, 2010
Populi is a web-based college management system. These Terms of Service set forth the obligations of all Populi customers and/or users.
Populi, Inc (“We”, “Us”, “Our”, etc.) provides its Service (as defined below) through the website located at https://institutiondomain.populiweb.com (the “Site”) to the Institution and all users who access the Site (“You”, etc.) subject to these Terms of Service (“TOS”). If You are entering into this TOS on behalf of an Institution or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these TOS, in which case the terms “You” or “Your” may also refer to such entity and its affiliates. If You do not have such authority, or if you do not agree with these TOS, You must not accept these TOS and may not use the Service.
You acknowledge that you have read, understood, and agree to be bound by these TOS; that these TOS, together with any other contracts or agreements between You and Us, constitute the entire agreement (“Agreement”) between You and Us; and that such governs your use of the Service. Where these TOS directly conflict with any other written contracts or agreements executed between You and Us, the provisions of such Agreement shall take precedence over the provisions of these TOS.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
Your acknowledgment is made either by accepting these TOS, by accessing or using the Service, or by signing either the Information Management Services Agreement or Implementation Agreement (the “Agreements”).
Populi may change these TOS from time to time without prior notice. You can review the most current version of these TOS at any time by clicking the “Terms of Service” link on the Site or by checking http://www.populiweb.com/terms. The revised TOS will become effective upon posting. If You use the Service after that date, we will treat your use as acceptance of the revised TOS. If any change to these TOS is not acceptable to You, Your only remedy is to stop accessing and using the Service.
Our election to not exercise or enforce any right or provision of these TOS shall not be a waiver of that right.
All elements of the “Service” are subject to the TOS. The Service includes:
For Your employees, “Customer Support” includes:
For Your students, “Customer Support” includes:
“Customer Support” does not include:
We reserve the right to refer any support request received from Your students back to one of Your employees. You shall not distribute the Populi Customer Support phone number or the phone numbers of any Populi employee to Your students.
We reserve the right to modify or discontinue, temporarily or permanently, the Service (or any part or feature thereof).
The Institution (as named in either of the Agreements) is solely responsible for the initiation, maintenance, cancellation, and termination of its instance of the Service. Individual users at the Institution (“Users”) access and use the Service through the Institution’s instance of the Service. If the Institution is delinquent in its maintenance of or cancels or terminates its instance of the Service, the Users shall be unable to access and use the Service.
Subject to the terms and conditions of these TOS, You may access and use the Service for its intended purposes at Your sole risk. As to “Prohibited Uses”, You shall not:
All rights, title and interest in and to the Service, its software code, and all of its other components will remain with and belong exclusively to Us, subject only to the limited right to use and access the Service expressly granted to You under these TOS. You shall not modify, adapt, or hack the Service to falsely imply any sponsorship or association with Us, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
We make no claim of ownership, right, title, or interest in or to Your Content.
We grant You the non-exclusive and non-transferable right to access and use the Service within the User Role(s) granted you in the Service (“Role” or “Roles”). This right is limited by these TOS.
You are fully responsible for:
We cannot and will not be held liable in any way for loss or damage resulting from Your failure to comply with these responsibilities.
You agree to indemnify, defend, and hold Us harmless for any and all unauthorized uses you make of the Site or Service. You acknowledge that the unauthorized use of the Service could cause irreparable harm to Us and that in the event of an unauthorized use, We shall be entitled to an injunction in addition to any other remedies available at law or in equity.
Unauthorized uses include, but are not limited to, the following:
By uploading images, content, and other information to Populi’s Bookstore features, you agree to allow other internet users to view them without a login. You agree that We may display and store them and review all such content submitted by You, at any time.
You agree and acknowledge that User logins may only be used by one (1) person. A person is a human. Multiple people shall not be permitted to access or use the service through a single, shared login. You may create separate logins for as many people as are necessary for the effective operation of the Institution. You shall not create a login for any representative(s) of any competing software distributor or vendor.
We reserve the right to maintain our own logins on the Site in order to assist with Your support requests.
We reserve the right to suspend any User login or account if we suspect that User of hacking or attempting to hack the Service or for violation of these TOS.
We reserve the right to use the contact information stored in the Service to contact suspicious Users directly.
Your instance of Populi shall be considered “implemented” upon the creation and activation of Your unique Populi website.
You acknowledge that any materials or resources We make available to You, or communications from Us, regarding implementation or data import reflect Our experience and knowledge of Populi and the processes relating to implementation or data import, and thus shall govern Your expectations of how implementation and data import shall proceed.
Upon implementation, You shall be responsible for managing Your data via the Service.
You may request that We import Your “Legacy Data” into Populi during the initial implementation process. In that event:
You understand that the processing and transmission of the Service, including your content, but not including credit card information transmitted using the Service’s credit card processing features, may be transferred unencrypted and involve:
We do not warrant, nor are we responsible for, the quality, integrity, security, and condition of any intermediary networks, devices, or services used to connect any of your logins with the infrastructure required to run the Service.
You are welcome to submit feature requests, ideas, and other suggestions to us concerning improvements to the Service. We make no guarantees that We will respond to Your requests, nor that We will design, build, or implement into the Service any features or ideas arising from such requests. When We do incorporate requested features into the Service, You shall not be entitled to any remuneration, discount, or any other kind of benefit beyond the enhancement of the Service.
We are not responsible for any lack or diminishment of functionality, usefulness, accessibility, or clarity of the Service or your Content arising out of Your not using, or Your improper use of, the Service or any of its individual features.
We may, but have no obligation to, remove Content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violates any party’s intellectual property or these TOS.
A backup copy of your Data in MySQL format may be requested no more than once per quarter with at least 30 days’ notice. Such requests shall be fulfilled only if and when You have completely satisfied any of Your outstanding invoices.
Periodically, We will make new and/or upgraded feature(s) available to You. You acknowledge that some such features shall initially be released in “beta” mode and shall remain so for an indeterminate time. Upon release of such features, We and You shall make arrangement for the secure transfer of any of Your data applicable to the new feature(s). We shall not charge You for the release of, nor for the transfer of your data to, the new feature(s).
Populi and its various logos used or displayed on the Service are Our trademarks. You may only use these trademarks or logos for promotional purposes to identify Yourself as a customer or user of the Service, provided you do not attempt to claim ownership of the marks by incorporating any of them within Your names or offerings. We reserve the right of approval over all such uses of Our trademarks and logos.
All content posted on the Service must comply with U.S. copyright law. Our full copyright compliance policy may be found at http://www.populiweb.com/copyright.
The Service is made available on the following pricing and payment terms:
During account setup, you shall choose one of Our published pricing plans (“Plan” or “Plans”). Our Plans are published at http://www.populiweb.com/pricing. Each Plan consists of a monthly “Base Rate” plus a monthly per-Active Student rate (“Student Price”).
“Active Students” are Your full-time, part-time, and auditing students who are enrolled in at least one of Your courses for more than seven (7) calendar days in a given calendar month.
You shall be required to pay the Base Rate for every month we provide you with access and use of the Service. You shall be subject to the Student Price as soon as Your instance of Populi is implemented.
To determine the Student Price, on the first day of every calendar month We shall determine the number of Your Active Students (“Student Count”) from the previous month and multiply the Student Count by Your selected Plan’s Student Price.
We shall electronically issue to You invoices for the sum of the Base Rate and the Student Price. You shall pay invoices on a date falling within 30 calendar days of issue (“Pay Date”), via Automated Clearing House (“ACH”). To facilitate ACH payment, You agree to provide Us with Your account number and bank routing number (“Account Information”). On the Pay Date, We shall automatically deduct from such account an amount of funds equal to the invoiced amount. If you cannot use ACH payments, you may request an alternative payment method.
Any fees or penalties incurred by Us because of Your late payment, insufficient funds, or any other such reason shall be added to Your next invoice.
You shall choose Your Plan during initial account setup. Afterwards, You may change Your Plan at any time by informing Us in writing.
Without exception, there shall be no refunds, prorations, or credits for any partial months of service or for months of service in which You change Your Plan.
Plan Prices are subject to change upon 90 days notice from us. Such notice may be provided at any time.
We use a third-party intermediary to manage Automated Clearing House (“ACH”) processing. This intermediary is not permitted to store, retain, or use your billing information except to process your ACH information for Us. Please review our Privacy Policy or visit http://www.populiweb.com/privacy to understand how we collect and use any personal or private information.
All prices are stated in US Dollars, and are exclusive of all federal, state and local excise, sales, use, and other taxes. Any applicable state or local taxes are Your responsibility.
You may cancel Your use and instance of the Service at any time by notifying Us in writing (“Cancellation”). Such notice of Cancellation must contain the date you wish to terminate the Service (“Cancellation Date”). Upon the Cancellation Date described in such notification notice, We will begin terminating Your instance of the Service. We will deactivate the Site and all associated services and support. At such time, You will no longer be able to use or access the Service or any of Your data stored or maintained through the Service.
The calendar month in which the Termination Date falls shall be billed as a full month of service.
Within thirty (30) days of Your complete satisfaction of any and all of Your outstanding invoices, We will provide You with the final version (that is, a “snapshot” of your data as it existed immediately prior to termination) of your Populi data in SQL database format (“Final Data”).
If any problems exist in Your Final Data, You must report them to Us within thirty (30) days of receipt of Your Final Data. After thirty days, we may delete Your Final Data, and You will not be able to request another export of Your Final Data for any reason.
If You do not satisfy Your outstanding invoices within sixty (60) days of Cancellation, we may delete Your Final Data, and You will not be able to request another export of Your Final Data for any reason.
You are fully responsible for Your Final Data as of our provision of it to You.
Seeing that We incur “Implementation Costs” for valuable services rendered during implementation (including but not limited to data migration, training, customer support, setup of Your Site, etc.) for which You are not charged, that We have determined such Implementation Costs on your behalf to be $5,000, and that We do not commit You to a long-term agreement, You therefore agree:
We reserve the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) and refuse You any and all current and future use of the Service, including suspension or termination of Your use of the Service if We believe that You have violated these TOS. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service may be referred to appropriate law enforcement authorities. We shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
If either Party (You or Us) defaults in the performance of its material obligations and such default continues after written notice to that Party for a period of sixty (60) Business Days, then the non-defaulting Party may terminate this Agreement by providing the defaulting Party written notice of termination.
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU, THE INSTITUTION, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION ARISING OUT OF THE SALE OR USE OF POPULI OR ANY OF THE FOLLOWING:
WE SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OR LIABILITIES IN EXCESS OF THE AMOUNT THAT HAS BEEN PAID US BY THE INSTITUTION. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
In states which do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, some of the above limitations may not apply to You. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
This Agreement, and any rights and licenses granted herein, may not be transferred or assigned by You, but may be assigned by Us without restriction.
These TOS shall be governed by the laws of the State of Idaho without regard to the principles of conflicts of law. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Idaho for the purpose of resolving any dispute relating to your access to or use of the Service.
