1 – GENERAL TERMS
1.1 Agreement. This Agreement is a binding legal agreement between you and DiscoverDance, LLC. (“DISCOVERDANCE”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and DISCOVERDANCE are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
This Agreement applies to any use of the Services, whether in connection with a one time purchase, a paid subscription or a free trial.
1.2 Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our Website, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing info@DiscoverDance.net. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on our Website.
2 – SERVICES
2.1 Access to Services. The DISCOVERDANCE program offers dance teachers a full curriculum with monthly lesson plans, coloring pages, suggested music, handouts such as parent welcome letter, vocabulary lists, progress reports, achievement certificates, as well as camp and special event plans (the “Services”). DISCOVERDANCE will make the Services to which you have purchased available to you, subject to the terms and conditions of this Agreement. We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
2.2 Third Party Offerings. Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply DISCOVERDANCE’s endorsement of or affiliation with the provider. DISCOVERDANCE does not control Third Party Offerings and will have no liability to you in connection with any Third Party Offerings. DISCOVERDANCE has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting DISCOVERDANCE to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
3 – YOUR RESPONSIBILITIES
3.1 Liability for Affiliates and End Users. You are responsible for all activity occurring under your account. You will ensure that your Affiliates and End Users comply with all of the provisions of this Agreement and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use by Affiliates and End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you.
3.2 Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify DISCOVERDANCE promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
3.3 Restrictions on Use. You and your Affiliates will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data/information contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services or the Website any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services or the Website; (vi) remove any copyright, trademark or other proprietary rights notice from the Services or the Website; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services or the Website.
3.4 Cardholder Data. You are liable if any Cardholder Data is mishandled under your account. You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
3.5 User Names and Passwords. DISCOVERDANCE may reject or require that you change any user name or password under your account for any reason in their sole discretion. User names and passwords are for internal business use only and may not be shared with any third party. You, are responsible for any use or misuse of user names or passwords associated with your account.
4 – FEES AND PAYMENT
4.1 Fees. Fees for use of the Services are set forth on the Order Form located on our website at DiscoverDance.net, and may be updated by DISCOVERDANCE from time to time.
4.2 Payment Terms. You agree to pay DISCOVERDANCE the applicable fees stated on the corresponding Order Form or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance. You will provide DISCOVERDANCE with valid and updated credit card information or another form of payment acceptable to DISCOVERDANCE. If you provide credit card information, you represent that you are authorized to use the card and you authorize DISCOVERDANCE to charge the card for all payments hereunder. By submitting payment information, you authorize DISCOVERDANCE to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by DISCOVERDANCE for purposes of acknowledging or completing any payment.
4.3 Changes in Fees. DISCOVERDANCE may increase any fees that are not specified in an Order Form at any time, with or without notice to you.
4.4 Payment Errors. If you believe a payment has been processed in error, you must provide written notice to DISCOVERDANCE within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by DISCOVERDANCE within such thirty (30) day period, the payment will be deemed final.
4.6. Taxes. You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If DISCOVERDANCE is legally required to pay or collect any Taxes on your behalf, DISCOVERDANCE will invoice you and you will pay the invoiced amount.
5 – INTELLECTUAL PROPERTY RIGHTS
5.1 DISCOVERDANCE Intellectual Property. DISCOVERDANCE owns all right, title and interest in and to the Services and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, DISCOVERDANCE reserves all rights, title and interest in and to the Services, the DISCOVERDANCE Data and Aggregated Data, including, without limitation, all related intellectual property rights. DISCOVERDANCE service marks, logos and product and service names, are owned by DISCOVERDANCE, LLC. You agree not to display or use any DISCOVERDANCE Marks in any manner without express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks. Except as expressly provided in these Terms & Conditions, no DISCOVERDANCE content contained on the Website or in the Services may be copied, reproduced, sold, republished, transmitted, displayed, reposted, or otherwise distributed for public or commercial purposes. Nothing contained in these Terms & Conditions shall be deemed grant to you or any other user any rights, title, or interest in or to any copyright, trademark, or other proprietary right of ours or any of our licensors.
Without limiting the generality of any other provisions of these Terms & Conditions, you may not post, upload, or transmit any third party content that is protected by copyright, trade secret, or subject to any other third party intellectual property rights or privacy rights unless you are the owner of such rights or you have the express permission from the rightful owner of such rights to upload, post, or submit such content and to grant us all the rights granted herein.
5.2 License Grant to You. Subject to the terms and conditions of this Agreement, DISCOVERDANCE hereby grants to you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license and right to use the Services, upon completed purchase and set forth in an Order Form, for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) publish, distribute, retransmit, sell or provide access to, license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by DISCOVERDANCE in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
5.3 License Grant to DISCOVERDANCE. You hereby grant to DISCOVERDANCE and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license (a) to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or DISCOVERDANCE’s business; and (b) to use your business name(s), trademarks, service marks or logos (collectively, “Your Marks”) in connection with providing the Services and for marketing and promotional purposes in connection with DISCOVERDANCE’s business. DISCOVERDANCE agrees that any use by DISCOVERDANCE of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to DISCOVERDANCE herein, all right, title and interest in and to Your Marks are expressly reserved by you.
5.4 Intellectual Property Policy. DISCOVERDANCE respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property policy, as may be updated by DISCOVERDANCE from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy.
6 – DATA OWNERSHIP AND USE
7 – CONFIDENTIAL INFORMATION
7.1 A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict DISCOVERDANCE with respect to any collected Data.
8 – TERMINATION
8.1 Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) all Order Forms will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services.
8.2 Right to Terminate or Suspend Services. We may suspend or terminate the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to DISCOVERDANCE or any third party, or (b) that we are required to do so by law.
9 – WARRANTIES AND DISCLAIMERS
9.1 Accuracy of Your Account Information. You agree to provide DISCOVERDANCE with complete and accurate account information, including your legal company name, street address, e-mail address, and such other contact information as may be requested by DISCOVERDANCE. You are responsible for keeping your account information up to date, and you agree to promptly notify DISCOVERDANCE in writing if any information changes.
9.2 Disclaimer of Warranties. THE SITE, ALL CONTENT, AND ALL PRODUCTS AND SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SITE, AS WELL AS AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT INCLUDED IN OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED OR MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, CURRENTNESS, FREEDOM FROM INTERRUPTION OR ERROR, VIRUSES OR OTHER DEFECT, AND NON-INFRINGEMENT, ALL OF WHICH DISCOVERDANCE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW. YOUR USE OF THE SITE AND OF ANY SERVICES, WHETHER DISCOVERDANCE CONTENT OR USER CONTENT, IS ENTIRELY AT YOUR OWN RISK.
10 – INDEMNIFICATION
11 – LIMITATIONS OF LIABILITY
11.1 DISCOVERDANCE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) CONTROLLED BY DISCOVERDANCE. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL DISCOVERDANCE’S AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT.
IN NO EVENT WILL ANY DISCOVERDANCE PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF DISCOVERDANCE, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12 – MISCELLANEOUS
12.1 Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Illinois without regard to conflicts of laws principles.
12.2 Mandatory Informal Dispute Resolution. If you have any dispute with DISCOVERDANCE arising out of or relating to this Agreement, you agree to notify DISCOVERDANCE in writing with a brief, written description of the dispute and your contact information, and DISCOVERDANCE will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.
12.3 Binding arbitration. Any dispute will be conducted exclusively by binding arbitration governed by the U.S. Federal Arbitration Act. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final and binding. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
12.4 Not Advice. Information contained in the Services is not intended to be medical, legal, tax, financial or other advice and should not be considered medical, legal, tax, financial or other advice, nor is it intended to replace consultation with a qualified physician, attorney or other professional.
12.8 Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without DISCOVERDANCE’s prior written consent. DISCOVERDANCE may assign, transfer or sublicense any or all of DISCOVERDANCE’s rights or obligations under this Agreement without restriction.
12.9 Notices. Any notices provided by DISCOVERDANCE under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from DISCOVERDANCE through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.
12.10 Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes, computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
12.11 Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you, your Affiliates or End Users, and DISCOVERDANCE.
12.12 Entire Agreement. These Terms & Conditions represent the entire agreement between the Parties with respect to the subject matter addressed herein and supersedes all prior to contemporaneous agreements or understandings, written or oral. These Terms & Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and lawful assigns.
For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
“Aggregated Data” means anonymized, aggregated data derived by or through the use of the Services or the Website that is created by or on behalf of DISCOVERDANCE and that does not reveal any personally identifying information.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.
“Confidential Information” means (a) any software utilized by DISCOVERDANCE in the provision of the Services; (b) each Party’s proprietary information, including but not limited to information relating to plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document.
“End User” means a business or individual that schedules or purchases products or services from you through the Services or otherwise interacts with you through the Services.
“End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users.
“Order Form” means a separate ordering document, invoice or other documentation that specifies the Services purchased hereunder, the applicable fees, and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
“PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
“Services” means granting access to and utilizing materials comprising a full curriculum with monthly lesson plans, coloring pages, suggested music, handouts such as parent welcome letter, vocabulary lists, progress reports, achievement certificates, as well as camp and special event plans contain in the programs as purchased.
“Third Party Offerings” means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, incorporate, or that interoperate with or are used in conjunction with the Services.
“Website” means http://www.discoverdance.net/ and any other websites through which DISCOVERDANCE makes the Software Service available.
“Your Data” means any data, information or material provided or submitted by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data, but excludes Aggregated Data.