Terms of Use

We, the University of San Diego (also referred to as “USD”), develop and operate a proprietary educational tool for social good innovation for use by students and teachers age 13 and above referred to as “Pactful”. Pactful is managed by the Jacobs Institute for Innovation in Education, part of USD. By using Pactful, you, the person or entity using Pactful, are agreeing to these Terms of Use (also called the “Agreement”). This Agreement is binding on any person or entity who accesses or uses Pactful, including those who create an account on behalf of a third party.

BY ACCEPTING THIS AGREEMENT, YOU AGREE THAT YOU ARE AT LEAST 13 YEARS OLD AND HAVE READ AND UNDERSTAND, AND AGREE TO, THE TERMS OF THIS AGREEMENT, AND THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, EITHER INDIVIDUALLY OR AS AN EMPLOYEE OR AGENT OF AN INDIVIDUAL, ORGANIZATION, OR ENTITY ON WHOSE BEHALF YOU ARE ACTING. You agree to waive any defense you may have based on the electronic form of this Agreement and your lack of signature. If you do not accept this Agreement, you may not register for or use Pactful.

THIS AGREEMENT IS SUBJECT TO A MANDATORY ARBITRATION PROVISION AND A WAIVER OF JURY TRIAL AND WAIVER OF CLASS ACTION LAWSUITS—PLEASE READ THE SECTION ENTITLED DISPUTE RESOLUTION BELOW CAREFULLY.

We may change, modify, add, or remove portions of this Agreement (each, an “Update”) from time to time without prior notice, and such Updates will be effective immediately, so we encourage you to frequently review these Terms of Use. If we make an Update, we will change the “Last Updated” date above. Your continued use of Pactful confirms your acceptance of the Update. If you do not agree to the updated Terms of Use, you should discontinue using Pactful.

We may also make changes, upgrades, and improvements to Pactful from time to time at our discretion. We may modify or remove features and functions of Pactful from time to time.

Using The Pactful Platform

Access

Subject to this Agreement, we grant you a non-exclusive, non-transferable, revocable limited right to access and use Pactful, provided that all such access and use is solely for the permitted purposes described in this section and in compliance with all applicable Laws (defined below). Educators may access, and use, the full range of Pactful solely for non-commercial, educational purposes, and students may use Pactful solely for their personal use, and may not have access to the full range of Pactful. When educators direct students to use Pactful, educators are responsible for the students’ use of Pactful. You are entirely responsible for any and all activities that occur under your account. You agree to notify us immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by us or another party due to someone else using your account or password. You may not use anyone else's account at any time.

Compliance with Laws

If you or a student uploads, transmits or discloses any data to Pactful that would constitute “Personally Identifiable Information”, then you must do so in compliance with all applicable Laws. Some examples of Personally Identifiable Information include a person’s name, email address, student identification number, address, date of birth and mailing address. “Laws” mean all governmental and regulatory laws, rules, and regulations and include all applicable federal and state communications, export and data security and data privacy laws such as the Family Educational Rights and Privacy Act (“FERPA”) and the Children’s Online Privacy Protection Act (“COPPA”). You agree to comply with all applicable Laws in connection with Pactful, including by obtaining consent or notification of op-out, where appropriate, such as may be required pursuant to FERPA.

Restrictions on Use

You shall not use, or allow others to use, Pactful in any manner other than as expressly allowed in this Agreement. You may not:

• reverse engineer, decompile, disassemble, re-engineer, or otherwise create or attempt to create or permit, allow, or assist others to create the source code of Pactful or its structural framework;
• sublicense, subcontract, translate, license, or grant any rights to Pactful (including without limitation allowing any distribution or sublicense of Pactful or other access to Pactful by any person or entity that is not an authorized user, or processing data using Pactful on behalf of third parties or any affiliated entities) or use Pactful for commercial purposes;
• use any robot, spider, site search, or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of Pactful;
• harvest or collect information about or from other users of Pactful;
• probe, scan, or test the vulnerability of Pactful, or breach the security or authentication measures on Pactful, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Platform;
• modify or create derivative works of Pactful;
• attempt to gain unauthorized access to Pactful or its related systems or networks;
• use Pactful in whole or in part for any illegal purpose;
• access or use Pactful to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes; or
• facilitate or encourage any violations of this section.

You shall:

• take all reasonable precautions to prevent unauthorized or improper use of Pactful;
• not interfere with or disrupt the integrity or performance of Pactful;
• not attempt to gain unauthorized access to Pactful or its related systems or networks; and
• not “frame” or “mirror” any content therein.

Acceptable Use Policy (AUP)

You acknowledge that we engage third party vendors to host Pactful, and may change such vendors from time to time. You shall at all times use Pactful in accordance with such vendors' acceptable use policy as made available to you from time to time (“AUP”), and the AUP is incorporated into this Agreement in its entirety as if fully set forth herein. As of the Effective Date, our hosting provider is Heroku, and you shall comply with Heroku’s AUP found at https://www.heroku.com/policy/aup. You acknowledge that the vendor’s AUP may change from time to time and it is your responsibility to review the current vendor’s AUP regularly to ensure your continued compliance. Without limiting the foregoing, you may not use Pactful in the following ways:

• In connection with pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise).
• To defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
• To publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material, or information.
• To upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, by way of example and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
• To use any material or information, including images or photographs, which are made available through Pactful in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary rights of any party.
• To upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of a computer or network or property.
• To advertise or offer to sell or buy any goods or services.
• To download any file posted by another user that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner.
• To falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
• To restrict or inhibit any other user from using and enjoying Pactful.
• To harvest or otherwise collect information about others, including email addresses.
• To violate any applicable Laws.
• To create a false identity for the purpose of misleading others.
• To use, download, or otherwise copy or provide (whether or not for a fee) to a person or entity any directory of users or other user or usage information or any portion thereof.

License to User Data

You grant us a nonexclusive, royalty-free, worldwide, license to use, copy, modify, translate, transmit, monitor, retrieve, store, create derivative works from, distribute and display, all data and information transmitted and uploaded by you to Pactful, and transformations and derivative works thereof (“User Data”), to provide Pactful to you and to improve performance, features, or functions of Pactful. User Data includes, without limitation, any submission, or other works of authorship, in connection with your use of Pactful, and all information recorded and/or stored in your account in connection with your use of Pactful. You represent and warrant that you have all rights and consents necessary to transmit, upload, or otherwise disclose User Data and that the User Data does not infringe or violate the rights of any party, including without limitation any intellectual property rights or rights of privacy or publicity. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of User Data, and our use of User Data is governed by our Privacy Policy, the current version of which is found at https://app.pactful.org/privacy-policy. By accepting this Agreement, you agree to the terms of the Privacy Policy, which are a part of this Agreement. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures; you acknowledge that you are providing User Data at your own risk.

Monitoring and Use of Data

We have no obligation to monitor Pactful. However, we reserve the right to review any and all data, information content, and materials posted to Pactful and to remove any materials, User Data, or accounts in our sole discretion. We reserve the right to suspend or terminate your access to any or all of Pactful at any time, without notice, for any reason whatsoever, including to avoid infringement or to comply with applicable Laws. We may gather user system and usage data for the purpose of optimizing Pactful. This information includes, but is not limited to, data regarding browser information, memory usage, connection speed, and efficiency. We may use such data and User Data for our business purposes and educational mission, including, but not limited to, research, the identification of trends, and the formulation of statistics and may disclose the same to others, provided that in connection with such use or disclosure, we comply with all applicable laws.

Ownership

Using Pactful does not give you ownership of any intellectual property rights in Pactful or in the Content. We and our licensors retain all worldwide right, title, and interest in and to Pactful and all “Content”, which includes, without limitation, all visual content, audio content, text, data, source code, algorithms, authentication methods, know-how, processes, designs, logos, marks, look and feel, and all other content made available by us through Pactful, and all worldwide intellectual property rights therein. We and our licensors own all derivative works and enhancements of Content, including all worldwide intellectual property rights therein. No logo, graphic, sound or image from Pactful may be copied or re-transmitted unless permitted by us in writing. Any and all feedback or suggestions you provide with respect to Pactful, and any product or service incorporating such feedback, is our sole and exclusive property, and you irrevocably assign to us all intellectual property rights and all other rights and title related to such feedback and suggestions. We reserve all rights not expressly granted to you in this Agreement.

Breach

Any breach of this Agreement that occurs through or by your account shall be deemed to have been a breach by you. We may suspend access to Pactful at any time without liability in our sole discretion.

Disclaimer

THE PACTFUL PLATFORM AND ALL RELATED INFORMATION, DATA, CONTENT, AND SERVICES ARE MADE AVAILABLE TO YOU “AS IS” AND WITHOUT ANY WARRANTY, AND WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION IMPLIED OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE, ALL OF WHICH ARE HEREBY DISCLAIMED.

WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR OUR AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, PROVIDERS, DISTRIBUTORS, OR LICENSORS WARRANT OR REPRESENT THAT THE PACTFUL PLATFORM, INCLUDING THE INFORMATION MADE AVAILABLE THROUGH THE PACTFUL PLATFORM, WILL BE UNINTERRUPTED, UNCORRUPTED, ACCURATE, RELIABLE, COMPLETE, CURRENT, TIMELY, COMPLETELY SECURE, OR ERROR-FREE, OR THAT DEFECTS OR BUGS CAN OR WILL BE CORRECTED, OR THAT THE PAGES OR THE SERVER, SYSTEMS, OR NETWORKS THAT MAKE THE PACTFUL PLATFORM AVAILABLE ARE FREE FROM VIRUSES, WORMS, OR OTHER HARMFUL COMPONENTS. WE CANNOT AND DO NOT GUARANTEE NOR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING THROUGH THE PACTFUL PLATFORM WILL BE FREE OF INFECTION BY SOFTWARE VIRUSES OR OTHER HARMFUL COMPUTER CODE, FILES, OR PROGRAMS.

You agree and acknowledge that Pactful is not intended to be used as a substitute for your professional and/or educational duties. You agree and acknowledge that you bear all responsibility for decisions you make based on any information you learn in connection with Pactful.

User Indemnification

You agree to indemnify and hold us, our affiliates, licensors, and suppliers—and our and their respective officers, directors, trustees, representatives, employees, and agents—harmless from any losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) directly or indirectly arising out of or relating to (i) your use of Pactful, unless the claims are covered by our obligations in the Section entitled Infringement below; (ii) your noncompliance with applicable Laws or breach of this Agreement; and (iii) User Data.

Infringement

Third Party Claims

If a third party makes a claim against you alleging Pactful (excluding User Data) directly infringes any United States patent, copyright, or trademark, or misappropriates any trade secret (“IP Claim”), then we will have the sole and exclusive right—but not the obligation—to defend you against the IP Claim and pay all costs, damages, and expenses (including reasonable legal fees and costs) finally awarded against you by a court of competent jurisdiction or agreed to in a written settlement agreement signed by us arising out of such IP Claim; provided that: (a) you notify us in writing no later than thirty (30) days after your receipt of notification of a claim or potential claim; (b) you permit us to assume sole control of the defense of such claim and all related settlement negotiations; and (c) you provide us, at our request and expense, with the reasonable assistance, information and authority necessary to perform our obligations under this Section. You may not make any admissions or consent to any judgment or settlement in respect of an IP Claim without our prior written consent.

Exceptions

We shall have no liability for any claim of infringement based on: (a) the unauthorized modification of Pactful; (b) use of Pactful other than in accordance with the provided documentation and this Agreement; or (c) User Data. If, due to an IP Claim or the threat of an IP Claim, (i) Pactful is held by a court of competent jurisdiction to be infringing, or in our reasonable judgment may be held to infringe by such a court or (ii) you receive a valid court order enjoining you from using Pactful, or in our reasonable judgment you may receive such an order, we may, at our option: (1) replace or modify Pactful to be non-infringing; (2) obtain for you a license to continue using Pactful; or (3) terminate this Agreement upon notice. THIS SECTION ENTITLED INFRINGEMENT STATES THE ENTIRE LIABILITY OF USD TO YOU OR ANY THIRD PARTY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS.

Limitation Of Liability

IN NO EVENT SHALL USD, OR ITS AFFILIATES, LICENSORS, TRUSTEES, EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR ANY LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF SUCH CLAIM. OUR TOTAL MAXIMUM LIABILITY TO YOU WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (I) THE AMOUNT OF FEES PAID BY YOU TO US IN CONSIDERATION FOR YOUR USE OF THE PACTFUL PLATFORM; OR (II) ONE HUNDRED DOLLARS ($100.00). In the event this limitation of liability or disclaimer of damages is not enforceable in certain jurisdictions, our liability shall be limited in those jurisdictions to the greatest extent permitted by law. Without limiting the foregoing, we are not responsible for your behavior, or for any personal injury, death, property damage, or other harm or losses arising from or relating to your use of Pactful.

General Terms

Third Party Website Links and Referrals

Pactful may contain links to other websites operated by third parties and referrals to third party service providers or other entities. These third party websites and referrals are not under our control. We provide these links and referrals only as a convenience to you, and do not review, approve, monitor, endorse, warrant, or make any representations with respect to the links and referrals. Your use of these third party websites and referrals to third party vendors is at your own risk.

Construction

All headings in this Agreement are included solely for convenience, and shall not affect its interpretation. If it turns out that a particular term in this Agreement is not enforceable, this will not affect any other terms. This Agreement constitutes the entire agreement between, and supersedes any prior or separate agreements, between the parties, with respect to its subject matter. If you fail to comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights or remedies that we may have (such as taking action in the future). If we decide, in our sole discretion, to waive a term or condition of this Agreement, such waiver will stand alone and will not imply any other waiver of any other term or condition. You agree that this Agreement will not be construed against us by virtue of having drafted it.

Notices

All notices and consents sent to us under this Agreement must be written and transmitted by confirmed email to support@pactful.org. Notices shall be deemed received on the date of receipt. Notices to you will be provided through Pactful or as an Update to this Agreement or to the email address you used to register with us.

Relationship

The parties are independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture, or agency relationship between the parties or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other. These terms do not create any third party beneficiary rights.

Force Majeure

We will be excused from performance for any period during which, and to the extent that, we or our suppliers, licensors, and agents are prevented from performing any obligation or service, in whole or in part, as a result of causes beyond our reasonable control, and without fault or negligence.

Governing Law

The laws of the State of California will apply to any disputes arising out of or relating to this Agreement, without regard to conflict of laws principles, and the United Nations Convention for the International Sale of Goods is hereby excluded.

Dispute Resolution

• (a) Both parties agree to first attempt to negotiate any dispute (except those expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will begin upon written notice from one party to the other.
• (b) If the parties cannot come to a resolution within thirty (30) days of commencement of informal negotiations, either party may choose to have the dispute (except those expressly excluded below) finally and exclusively resolved by binding arbitration in San Diego, California, United States. This election to arbitrate is final and binding. The Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS (available on the JAMS website, www.jamsadr.com) will govern the binding arbitration. The Federal Arbitration Act determines whether a dispute is subject to arbitration. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will decide in writing but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, both parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
• (c) YOU UNDERSTAND THAT ABSENT CLAUSE (b) and CLAUSE (c), YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL, AND SO YOU HEREBY WAIVE THE RIGHT TO A JURY TRIAL.
• (d) BOTH PARTIES AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN THE PARTIES. TO THE FULL EXTENT PERMITTED BY LAW: (A) NO ARBITRATION WILL BE JOINED WITH ANY OTHER; (B) YOU WAIVE ANY RIGHT TO COMMENCE A CLASS-ACTION SUIT; AND (C) NO DISPUTE MAY BE BROUGHT IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.

Assignment

You may not sell, lease, assign, or otherwise transfer any rights granted under this Agreement. Any attempt to do so shall be void and of no effect without our advance written consent. This Agreement will inure to the benefit of and be binding upon any successors and permitted assigns of the parties.

Location of Service

You acknowledge that we operate and control Pactful from North America. We make no representation that Pactful is appropriate or available in other locations. The information provided on Pactful is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access Pactful from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

Please print these terms of use for your records.