Knewton Enterprise Service Terms and Conditions

Effective Date of Last Update: July 31, 2017

The following terms (the “Knewton Terms”) apply to the adaptive learning services (the “Knewton Services”) provided by Knewton, Inc. (“Knewton”) through our enterprise partners’ online learning applications that are enabled with Knewton’s adaptive learning technology. Your use of our enterprise partners’ online learning applications are governed by their terms of service that you have agreed to; these Knewton Terms, which together with our  Enterprise Privacy Policy, governs our relationship with users in relation to the Knewton Services only, and constitutes a binding legal agreement between Knewton and you, and by agreeing to them, you represent that you have the authority and legal capacity to do so.  In these Knewton Terms, we use the term “you” and “your” to refer to both the individual agreeing to these terms and any user for whom that individual has agreed to these terms as a parent, guardian or Educator on behalf of such user, as applicable.

1. KNEWTON PROPRIETARY MATERIALS.

Our technology allows us to personalize online education for our users by causing the presentation and focus of the course materials to adapt based on the user’s needs and how they learn best, and also provides analytic reporting to help track the user’s progress.  This technology is key to the Knewton Services.

Knewton’s software and technology and any other items made available through the Knewton Services (collectively, “Knewton Proprietary Materials”) are the intellectual property of Knewton or its licensors.  The Knewton Proprietary Materials do not include any course materials or online learning applications provided by Enterprise Partner; each user’s use of any such course materials and online learning applications is subject to terms agreed to by the user and the Enterprise Partner.

2. INTEGRATION WITH ENTERPRISE PARTNERS.

The Knewton Services are provided to users through integrations with the online learning applications of our Enterprise Partners.  Each user’s use of such online learning applications is subject to terms agreed to in a separate agreement between the user and the applicable Enterprise Partner.  Knewton is not responsible for any of the products or services of any Enterprise Partners.

3. SHARING OF INFORMATION WITH ENTERPRISE PARTNERS; KNEWTON PROFILES.

In order for our Enterprise Partners to provide the Knewton Services to users, Knewton needs to receive (1) information from Enterprise Partner regarding users’ interactions and performance when interacting with Enterprise Partner’s online learning applications (“Usage Data”) and (2) a unique indirect identifier that the Enterprise Partner has assigned to a user.  This Usage Data may include, but is not limited to, descriptions of content and problems a user has viewed and attempted, problems a user has answered correctly or incorrectly, the amount of time spent viewing content, etc.  This Usage Data with indirect identifiers are automatically collected, shared, received, accessed, stored and used between an Enterprise Partner and Knewton as users interact and access the Enterprise Partner’s online learning applications. No direct identifiers about a user are included with this Usage Data or otherwise shared with Knewton.

Usage Data may be used by Knewton in order to operate the Knewton Services by providing Enterprise Partner with recommendations and analytics data that are personalized to users based on this Usage Data that the Enterprise Partner may in turn render to users and/or instructors or other authorized personnel of a school or other institution.  As part of our relationship with you, Knewton will also create and maintain a personalized learning history for each user based on his/her Usage Data in order to provide the Knewton Services. Usage Data may also be used by Knewton to improve and inform our adaptive learning technologies, including troubleshooting, data analysis, testing and research, and maintenance and debugging purposes, all in accordance with applicable laws and our Enterprise Privacy Policy.

By using the Knewton Services, you hereby agree and consent to the foregoing uses and sharing of such Usage Data by Knewton. Please see Knewton’s Enterprise Privacy Policy for a more detailed description of the type of Usage Data Knewton receives and how Knewton treats and protects Usage Data.

4. RIGHT TO USE AND ACCESS.

In connection with your use of the Enterprise Partner’s online learning applications that are enabled with our adaptive learning technology, Knewton grants you (or the user for whom you are agreeing to the Knewton Terms) a revocable, non-exclusive, non-transferable right to access and use those portions of the Knewton Services that Knewton makes available to you or such user, solely for personal, noncommercial, noncompetitive, use, in accordance with the Knewton Terms.  Neither you nor any other user may transfer the foregoing rights, and any attempt to do so shall cause such rights to automatically terminate.

5. USER CONDUCT.

As a condition of use, you promise not use the Knewton Services for any purpose that is unlawful or prohibited by these terms, or any other purpose not reasonably intended by Knewton. By way of example, and not as a limitation, each user agrees not to use the Knewton Services in any manner that could: (i) damage, impair, disable or overburden the Knewton Services, (ii) in any way interfere with Knewton’s rights or with any other user’s use and enjoyment of the Knewton Services, (iii) be for any illegal purpose, or in violation of any local, state, national, or international law, or (iv) otherwise infringe on any person’s rights. Knewton may restrict, suspend or terminate your account if you abuse or misuse the Knewton Services.

6. DISCLAIMERS.

SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. THE KNEWTON SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, KNEWTON EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL WITH REGARD TO YOUR USE OF THE KNEWTON SERVICES.  ANY USE OF THE KNEWTON SERVICES IS AT THE USER’S SOLE RISK.

WITHOUT LIMITING THE FOREGOING, KNEWTON DOES NOT WARRANT THAT (i) THE KNEWTON SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS, (ii) THE KNEWTON SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE KNEWTON SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY CONTENT, SERVICES OR OTHER ITEMS OBTAINED THROUGH THE KNEWTON SERVICES WILL MEET YOUR OR ANY USER’S EXPECTATIONS, OR (v) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.

7. LIMITATION OF LIABILITY.

SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. KNEWTON WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF KNEWTON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THE KNEWTON TERMS AND/OR THE KNEWTON SERVICES. IN NO EVENT WILL KNEWTON’S AGGREGATE, CUMULATIVE LIABILITY TO YOU (AND ANY OTHER USER FOR WHOM YOU ARE AGREEING TO THE KNEWTON TERMS) ARISING FROM OR RELATING TO THE KNEWTON TERMS AND/OR THE KNEWTON SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO KNEWTON (OR IF YOU HAVE NOT PAID KNEWTON DIRECTLY, THE AMOUNTS KNEWTON HAS RECEIVED FROM ENTERPRISE PARTNER) FOR YOUR ACCESS TO THE KNEWTON SERVICES (IF ANY) DURING THE ONE (1) MONTH PRECEDING THE DATE ON WHICH A CLAIM FIRST ARISES. To the extent that any of the exclusions or limitations of liability set forth in this Section are not permitted under applicable law, then such exclusions and limitations shall apply to the fullest extent permitted under applicable law.

8. INDEMNIFICATION.

You agree to indemnify, defend and hold harmless Knewton, its officers, directors, employees, agents, service providers, Enterprise Partners, vendors and customers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees resulting from (i) any violation of the Knewton Terms by you (or by any other user for whom you are agreeing to the Knewton Terms) or (ii) any harm caused by you (or by any other user for whom you are agreeing to the Knewton Terms) in connection with the use of the Knewton Services.

9. CHANGES TO THE KNEWTON TERMS.

We reserve the right to make changes to these terms by posting such changes through the Knewton Services (or, where applicable, through the services of our Enterprise Partners). Any such posted changes will be effective upon the date indicated by the posting, but in any event not sooner than 14 days after posting. You shall be responsible for reviewing and becoming familiar with any such changes. Your (or any other user for whom you are agreeing to these terms) continued use of the Knewton Services shall constitute acceptance of the terms as modified. If you do not want to agree to such changes to these terms or are otherwise dissatisfied with the Knewton Services or these terms, you may terminate these terms at any time by discontinuing use of the Knewton Services. Any provision of these terms, which by its nature or express terms should survive, will survive any such termination or expiration.

10. NOTICE.

Knewton may communicate any notices to you, including notices of changes to the Knewton Terms, through e-mail, regular mail or by posting of those notices through the Knewton Services and/or the Enterprise Partner’s online learning applications. You may contact us here, or via mail or courier at: Knewton, Inc. ATTN: Legal Department, 100 5th Ave., New York, NY 10011 USA.

11. GOVERNING LAW AND VENUE.

You agree that: (i) the Knewton Services shall be deemed solely based in New York; and (ii) the Knewton Services shall be deemed a passive website that does not give rise to personal jurisdiction over Knewton, either specific or general, in jurisdictions other than New York. The Knewton Terms and the relationship between you and Knewton shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or relating to use of the Knewton Services or the Knewton Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. You further consent and agree that the courts of the State of New York are the exclusive forum for litigation of any claim or cause of action arising out of or relating to use of the Knewton Services or the Knewton Terms.

12. MISCELLANEOUS.

The Knewton Terms govern your use of the Knewton Services and constitutes the entire agreement between you and Knewton, and supersede any prior agreements between you and Knewton. Any failure by Knewton to exercise any rights or enforce any of the Knewton Terms shall not constitute a waiver of such rights or terms.  If any provision of the Knewton Terms or their application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of the Knewton Terms, or the application of such provision in other circumstances, shall not be affected thereby, and each provision hereof shall be valid and enforced to the fullest extent permitted by law. These terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any assignment attempted to be made in violation of these terms shall be null and void. These terms do not confer any third party beneficiary rights.