Last Updated: February 23, 2022
1. THE SERVICES
1.1 These Terms of Service (“Terms”) govern your access to and use of the Watermark Insights, LLC website or a Watermark affiliates website, and the related software, products and/or services (collectively, “Service”). These Terms apply to all end users of the Service (“you”). You may use the Service only in compliance with these Terms, any agreement entered into by your institution relating to the Service, and all applicable local, state, national, and international laws, rules and regulations.
1.2 If your institution (“Organization”) has entered into a master agreement (“MSA”) with Watermark relating to the Service, Watermark agrees that Organization and its employees shall be bound by the terms and conditions of the MSA and therefore Watermark waives compliance by Organization and its employees with any conflicting provisions herein. Nothing in these Terms supersedes or limits your rights under the terms and conditions of any written agreement you have entered into with Watermark regarding the use of Services, and in the event of any conflict between these Terms and the terms and conditions of an applicable written agreement you have entered into with Watermark, the terms and conditions of the written agreement shall control. Subject to the foregoing, these Terms constitute a binding contract between you and Watermark, which establishes your and Watermark’s rights, obligations and liabilities regarding your use of the Service.
1.3 Subject to and conditioned on payment of fees for the Service and compliance with the Terms and all other terms and conditions of the MSA, if applicable, Watermark grants to you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service subject to any further limitations and restrictions established by the Organization for its end users.
1.4 Subject to any applicable MSA, Watermark may modify the Terms at any time. Changes will become effective when Watermark posts the modified Terms on the Website. Continued use of the Service by you constitutes acceptance of the Terms as modified.
2. END USER RESTRICTIONS AND RESPONSIBILITIES
2.1 You are responsible for your use of the Services, including for:
(i) ensuring that any information you have provided to Watermark in order to register or use the Service as an end user, and any data or other materials that you post or upload, either directly or indirectly through the Organization, to the Service (“Materials”), is and remains complete, accurate and current;
(ii) any use of the Service using your access codes, username and/or password, whether the use is by you personally or by someone else;
(iii) maintaining the security of your access to the Service and the confidentiality of any access codes, username and password provided to you. In the event that you become aware of or believe there has been any breach with respect to the foregoing, such as the theft or unauthorized use of your access codes, username or password, you agree to notify Watermark immediately;
(iv) complying with the Terms, as modified from time to time by Watermark, and with any other rules and regulations of which Watermark or the Organization gives you notice; and
(v) obtaining and using all computer hardware and software required for your access to and use of the Service and for any charges incurred for your own access to the Website through an Internet access provider or other third-party website.
2.2 You shall not, directly or indirectly: (a) attempt to gain access to Watermark’s software code for any purpose, including without limitation, to modify, disassemble, de-compile, reverse engineer, or otherwise attempt to determine the source code or protocols from the object code of the Service or knowingly permit or encourage any third party to do so; (b) use the Service in any manner to provide service bureau, time-sharing or other computer services to third parties; (c) use the Service in any manner to assist or take part in the development, marketing, or sale of a product potentially competitive with the Service; (d) remove or modify any proprietary marking or restrictive legends placed on the Service; or (e) use the Service, or allow the transfer, transmission, export, or re-export of the Service or portion thereof in violation of any applicable law, including, without limitation, export control laws or regulations administered by a government agency of competent jurisdiction. You shall provide such information as Watermark may reasonably request, in order to carry out the Service, in a timely manner, and ensure that it is complete and accurate in all respects. If Watermark’s performance of its obligations under these Terms Is prevented or delayed by your act or omission, Watermark shall not be deemed in breach of its obligations.
2.3 The license granted herein is nonexclusive, personal to you, and nontransferable. Any access codes, username and password are intended for your use alone. Such access codes, username and password may not be shared. If you are under the age of 18, you represent that you have obtained your parent’s or legal guardian’s consent to register for or use the Service. Users under the age of 13 are strictly prohibited from using the Service, unless they have received written permission from their parent, legal guardian or a teacher, and have forwarded such written permission to Watermark at the below address:
Watermark Legal Department
71 West 23rd Street, 15th Floor
New York, NY 10010
3. SERVICE AVAILABILITY
3.1 Watermark shall endeavor to ensure that the Service is available, except for scheduled downtime for maintenance or in the event of a force majeure event (as defined herein). In the event of unexpected downtime, Watermark’s sole obligation will be to use commercially reasonable efforts to resolve the issue as soon as reasonably practicable under the circumstances. Notwithstanding anything to the contrary in the Terms, Watermark may temporarily suspend your access to any portion or all of the Service if: (i) Watermark reasonably determines that (A) there is a threat or attack on any of Watermark’s IP; (B) your use of Watermark’s IP disrupts or poses a security risk to Watermark’s IP or to any other customer or vendor of Watermark; (C) you are using Watermark’s IP for fraudulent or illegal activities; (D) Watermark determines in its discretion that you cease to be an authorized end user of Organization entitled to access and use the Service (if applicable); or (E) Watermark’s provision of the Service to Organization or you is enjoined or otherwise prohibited by applicable law, or threatened to be enjoined or prohibited; or (ii) any vendor of Watermark has suspended or terminated Watermark’s access to or use of any third-party or products required to enable you to access the Service; (any such suspension described in subclause (i), or (ii), a “Service Suspension”). Watermark will not be liable to you if Watermark exercises its suspension rights as permitted by this Section.
3.2 Watermark may change or discontinue any portion, feature or content of the Service at any time with or without notice to you. Likewise, Watermark may at any time, with or without notice to you, restrict the use and accessibility to the Service as well as limit the duration and amount of use made of the Service.
3.3 Watermark accounts and the features and services that make up Watermark’s tools are limited in terms of the bandwidth for network traffic and disk utilization for storage allocated to them. Widely exceeding reasonable bandwidth or capacity based on end user normal usage patterns is prohibited. If there is excess usage on your account, Watermark reserves the right to temporarily disable access to your account. Repeated violations may result in termination of your account.
3.4 Additionally, this Section 3.4(a-e) shall apply to the use of Aviso Coaching, LLC dba Aviso Retention (“Aviso”) services:
a. Aviso Content. All information, methods, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content”. All Content and all software available on the Site or used to create and operate the Site is the property of Aviso or its licensors, and is protected by domestic and international copyright laws, and all rights to the Site, such Content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Aviso. Content provided by users is called “User Content”. User Content includes, but it is not limited to, profile information supplied by users or provided by the school or other educational institution that gives you access to the Site, posts and questions submitted to the Site, messaging to other users within the Site, certain biographical or business information supplied by users, and any other information submitted by a user for display on the Site. User Content is that user’s property. Aviso’s only right to that User Content is the limited licenses to it granted in this Agreement. Those licenses are described in Section 4 this Agreement.
b. Aviso License. Aviso grants you a limited, revocable, non-exclusive, non-sublicensable license to access the Site and to view, copy and print the portions of the Content available to you on the Site for personal use only or for use by your specific business; provided, however, that no Content may be distributed by you to any third parties without our express permission. Such license is subject to this Agreement, and specifically conditioned upon your compliance with this Agreement, including without limitation, Aviso’s Acceptable Use Policy. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of its owner is strictly prohibited and will terminate the license granted in this Section, this Agreement and your account with us. Any such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws. Unless explicitly stated herein, nothing in this Agreement may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this Section is revocable by us at any time.
e. Inactive Accounts; Cancellation; Termination of Agreement. You may terminate this Agreement and your use of the Site at any time, however continued usage may be required of you by your school or educational institution. We reserve the right to terminate your User account and your use of the Site without prior notice if we believe in our discretion that you have violated or acted inconsistently with this Agreement or the Acceptable Use Policy. When your account is terminated, your User Content may remain in the Aviso system as long as you continue to be enrolled at the school or educational institution and your school or educational institution continues to use the Service.
4. OWNERSHIP OF MATERIALS AND TECHNOLOGY COMPRISING THE SERVICE
4.1 WATERMARK DOES NOT OBTAIN ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HOLD IN YOUR MATERIALS, OTHER THAN THE LIMITED LICENSE GRANTED TO WATERMARK TO USE MATERIALS TO PROVIDE THE SERVICE, AS PROVIDED IN THE TERMS AND ANY APPLICABLE MSA.
4.2 Watermark retains ownership of the Service, including its technological components, and developments and derivatives thereof including all intellectual property rights contained therein.
4.3 Watermark may delete any inappropriate Materials posted or uploaded on the Service and reserves the right (but not the obligation) to take any action which Watermark deems appropriate in its sole discretion with respect to any such Materials. By way of illustration, and not limitation, inappropriate Material includes material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or racially, ethnically or otherwise objectionable.
4.4 In the event that you are in possession of any information concerning the violation of privacy rights or infringement of the intellectual property rights of any third party by the presence of any Materials on the Service, notify Watermark at email@example.com.
4.6 If you send or transmit any communications or materials to Watermark suggesting or recommending changes to Watermark’s IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Watermark is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign to Watermark, all right, title, and interest in, and Watermark is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Watermark is not required to use any Feedback.
4.7 Watermark may, from time to time (but no more than quarterly), conduct optional polls of end users to ascertain and measure the use and enjoyment of the Service by end users. All right, title and interest in poll inquiries and responses will belong to Watermark.
6. TERMINATION OF ACCESS
6.1 Watermark may suspend or terminate your accounts or cease providing you with the Service without notice at any time for any reason, including, but not limited to, immediately upon the expiration or termination of any applicable MSA governing the relationship between the Organization and Watermark. For example, Watermark may suspend or terminate your use of the Service if you violate these Terms, or engage in conduct that Watermark believes is harmful to Watermark or other end users. In event of Service termination: (a) all licenses granted hereunder to you shall immediately terminate, and (b) you shall immediately cease using the Service.
6.2 You may stop using the Service at any time.
7. DISCLAIMER OF WARRANTIES
7.1 Disclaimer. Except as expressly provided in the Terms: (a) use of the Service is at your sole risk; and (b) Watermark makes no express or implied warranty that the Service will be uninterrupted or error free, nor does it make any warranty as to the results that may be obtained from use of the Service, or as to the accuracy, reliability, completeness, or content of any information or Materials, software or merchandise that may be provided through the Service. No statement, information or advice, including, but not limited to statements regarding capacity, suitability for use or performance, whether made by a Watermark employee, reseller or other representative or otherwise, which is not contained in this agreement shall be deemed to be a warranty by Watermark for any purpose or give rise to any liability of Watermark whatsoever, and you agree that you will not rely on any such statement, information or advice.
7.2 No Editorial Control. You acknowledge that Watermark exercises no editorial control over Material posted by you or other end users of the Service. The views and opinions expressed in such information do not necessarily reflect those of Watermark. Watermark does not make any warranties or representations regarding the accuracy, adequacy, truthfulness, completeness, or usefulness of such information.
7.3 Third Party Websites. Any links provided from the Service are to websites not under control of Watermark, and Watermark in no way endorses or shall have any liability arising from such sites or the products or services offered therein. Watermark does not endorse any such linked websites.
7.4 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICE, SUPPORT, TRAINING AND ALL INFORMATION, MATERIALS AND SOFTWARE ACCESSIBLE THROUGH THE SERVICE ARE PROVIDED ON AN “AS-IS,” “AS-AVAILABLE” BASIS. THERE IS NO EXPRESS OR IMPLIED WARRANTY MADE AGAINST INTERFERENCE WITH THE ENJOYMENT OF ACCESS TO THE SERVICE OR THE INFORMATION CONTAINED THEREIN. WATERMARK HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, USAGE, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WATERMARK BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES THAT ARISE FROM LOSS OF ANTICIPATED REVENUE, LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS AND INJURY TO PROPERTY, EVEN IF WATERMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THAT ARISE IN CONNECTION WITH OR RESULT FROM YOUR USE OF OR INABILITY TO USE THE SERVICE INCLUDING, BUT NOT LIMITED TO, RELIANCE ON ANY MATERIALS, CONTENT, INFORMATION, WEBSITES, SOFTWARE OR PRODUCTS OBTAINED ON THE WEBSITE, OR MISTAKES, OMISSIONS, INTERRUPTIONS, COMMUNICATIONS FAILURE, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, OR THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR WEBSITES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND IN SUCH STATES WATERMARK’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. If, notwithstanding the foregoing, Watermark is held liable for damages, then regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), in no event shall the maximum liability of Watermark or its affiliates, directors, officers, shareholders, employees, agents or third party providers exceed the aggregate dollar amount paid by you in the twelve (12) month period preceding the date of the claimed injury or damage.
9. INDEMNIFICATION BY YOU
To the extent authorized by applicable law, you shall, at your sole cost and expense, indemnify, defend and hold harmless Watermark and its affiliates and their respective employees, officers, directors, shareholders, agents, insurers or third party providers from and against all actual or threatened claims by third parties and pay all costs, including reasonable attorneys’ fees, and damages resulting from such claims arising out of: (a) your use of the Service, (b) any breach of the Terms by you, (c) violation of any law or regulation by you, or (d) the infringement, misappropriation or violation by you of any patent, copyright, trademark, trade secret or other proprietary or privacy right of a third party.
10. COMPLIANCE WITH UNITED STATES EXPORT REQUIREMENTS
This agreement and your use of the Service are subject to any laws, regulations, orders or other restrictions on export from the United States of America of certain materials and technical data which may be imposed from time to time by the U.S. Government. Therefore, you will not transfer, directly or indirectly, by electronic means or otherwise, any Materials or information contained therein, or any direct products thereof, to any country, or to any agent, representative, or foreign national of any country, for which the U.S. Government or any agency thereof requires an export license or other governmental approval at the time of export without first obtaining such license or approval.
Watermark may give notice to you by electronic mail, by a posting on the Service, or by conventional mail. Notice by Watermark shall be effective on the date that Watermark makes a good faith effort to reach you. You shall give notice to Watermark as stated below. Notice by you shall be effective on the date that Watermark receives the notice.
via telephone: 1.800.311.5656 or 1.212.868.2700
via email: firstname.lastname@example.org
via U.S. mail: 71 W. 23rd Street, 15th Floor, New York, NY 10010
12.1 In the event that any provision of the Terms is held to be invalid or unenforceable, pursuant to judicial decree or decision, the remainder of this agreement shall remain valid and enforceable according to its terms.
12.2 You acknowledge that Watermark will be irreparably harmed by any breach of the Terms by you or by your unauthorized use of the Materials or the Service and, further, that monetary damages may not be a sufficient remedy for such harm. You agree that Watermark shall be entitled, without waiving any other rights or remedies and without further demonstration of irreparable harm or the inadequacy of monetary damages, to seek injunctive or other equitable relief in the event of any breach of this agreement by you or by your unauthorized use of the Materials or the Service.
12.3 Nothing in the Terms, express or implied, is intended to make any person or entity that is not a signer to the MSA a third-party beneficiary of any right created by the MSA or by operation of law.
12.4 If any party to the Terms is rendered unable, wholly or in part, by force majeure to carry out its obligations under this agreement, that party shall give to the other party prompt written notice of the force majeure event; thereupon the obligations of the party giving the notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected party shall use all reasonable diligence to remove the force majeure situation as quickly as practicable, provided that resolution of a force majeure event shall be at the sole discretion of the affected party. The term “force majeure” as herein contemplated, shall mean an act of God, strike, lockout, or other industrial disturbance, act of the public enemy, war, blockade, public riot, plague, pandemic, lightening, fire, storm, flood, earthquake, explosion, governmental action, governmental delay, restraint or inaction, unavailability of equipment, service or supplies and any other cause, whether of a kind specifically enumerated above or otherwise which is not reasonably within the control of the party claiming suspension.
12.5 The meaning of this agreement cannot be changed by your or Watermark’s conduct, even if repeated, or by any custom or practice of others engaged in the same or similar businesses.
12.6 Neither party is, nor shall be deemed to be, an employee, agent, co-venturer, or legal representative of the other party for any purpose. The parties are independent contractors. Neither this agreement nor any interest hereunder shall be transferable or assignable by you without the prior written consent of Watermark. Subject to the foregoing, the rights and obligations hereunder shall be binding on each party and their respective permitted successors and assigns. Whenever possible, each provision of the Terms shall be interpreted in such manner as to be effective, valid and enforceable under applicable law, but if any provision of the Terms is held to be prohibited by or invalid or unenforceable under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity or unenforceability, without invalidating, or rendering unenforceable, the remainder of the Terms. The Terms contain the entire understanding and agreement between the parties hereto with respect to the matters referred to herein, and supersedes any prior agreements on this subject matter between the parties with respect to the subject matter hereof (except in the case of an applicable MSA, as noted above). No provision of the Terms shall be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. No waiver shall constitute a consent to or waiver of any other breach of the same obligation or a breach of any other obligation contained herein. The Terms shall be governed by and construed in accordance with the laws of the United States and the State of New York, without regard to conflicts of laws and principles thereto. The Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any suit brought by either party against the other party shall be brought exclusively in a court in New York County, State of New York. Each party hereby waives and agrees not to assert any claim of improper venue, lack of personal jurisdiction or forum non conveniens in any claim brought according to the terms of this Section. You irrevocably consent to service of process, delivered personally or mailed by certified or registered mail, return receipt requested, at the address set forth in your end user information.