TERMS OF USE FOR FIDELISEDUCATION.COM
Effective as of: December 1, 2011
Date of Last Revision: December 1, 2011
Thank you for visiting Fidelis's website. These Terms of Use ("Terms of Use") apply to your access to and use of this site, any other sites operated or controlled by or on behalf or for the benefit of Fidelis College, Inc. ("Fidelis"), and any features, applications, products and/or services applications accessible through or in connection with any of such sites (any or all of such sites, the "Site(s)", and any or all of such features, applications, products and/or services, the "Service(s)"). Certain Services may be subject to additional terms and conditions ( "Additional Terms") as may be set forth in these Terms of Use, on the Sites or in connection with your use of such Services (which Additional Terms are hereby incorporated by reference into these Terms of Use). Your use of a Site or any Service constitutes your agreement to these Terms of Use and any applicable Additional Terms. These Terms of Use and any Additional Terms are also in addition to the terms or conditions of any other agreement you may have with Fidelis, or its subsidiaries or affiliates, for Services or otherwise, including, without limitation, terms, conditions and policies relating to educational programs provided by Fidelis.
These Terms of Use contain important information regarding your legal rights. By accessing or using any Site or Service, you are entering into a legal contract with Fidelis that governs you use of the Site or Service. Such access or use constitutes your agreement to be bound by these Terms of Use and any applicable Additional Terms. If you do not agree to the Terms of Use or Additional Terms, please do not use the applicable Site or Service.
1. Modifications. Fidelis reserves the right to change or modify these Terms of Use or any Additional Terms, at any time and in its sole discretion. In such event, Fidelis will post the changed Terms of Use or Additional Terms on the Sites and will indicate at the top of the applicable page the last revision date for the Terms of Use or Additional Terms. Changes or modifications will be effective immediately upon posting. You waive any right you may have to receive specific notice of such changes or modifications. Your continued use of any of the Sites or the Services following the posting of changes or modifications will constitute and confirm your agreement to and acceptance of such changes or modifications. It is your responsibility to regularly check the Sites to determine if there has been any change to these Terms of Use or any applicable Additional Terms and to review such changes. If you do not agree to the amended terms, please stop using the Sites and the Services.
2. Privacy Policy. The privacy policy on the applicable Site will specify how Fidelis collects, uses and discloses the information collected on that Site. If you have asked Fidelis to do so, personally identifiable information may be provided to educational institutions and may be protected pursuant to the provisions of the Family Educational Rights and Privacy Act of 1974, as amended ("FERPA") as well as State laws applicable to educational records. Information about the privacy of educational records is available from the educational institution.
3. Intellectual Property. Unless otherwise indicated, the Sites, the Services and all content and other materials on the Sites, including, without limitation, the Fidelis logo, as well as the selection and arrangement thereof (collectively, the "Site Materials") are the proprietary property of Fidelis or its licensors and are protected by U.S. and international copyright and other laws. Fidelis hereby grants to you, subject to these Terms of Use and the applicable Additional Terms, a limited, non-sublicensable license to access and use the Sites, the Site Materials and the Services, for your personal, educational and non-commercial use only. Without limiting the foregoing, you expressly agree, except with the prior written consent of Fidelis, not to:
a. sell, lease, transfer, lend, timeshare, syndicate or commercially use the Sites, Site Materials or the Services;
b. decompile, reverse engineer, disassemble or otherwise attempt to derive any source code from the Sites, the Site Materials or the Services;
c. distribute, publicly perform or publicly display the Sites, the Site Materials or the Services;
d. modify, adapt, translate, or create any derivative works of the Sites, the Site Materials, the Services or any portion thereof;
e. use any data mining, crawlers, spiders, robots or similar data gathering or extraction methods;
f. download, index or in any non-transitory manner store or cache any portion of the Sites, the Site Materials, the Services or any information contained therein, except as expressly permitted on the Sites;
g. remove, deface, obscure, or alter any copyright, trademark or other proprietary rights notices affixed to or provided in connection with the Sites, the Site Materials or any Services;
h. create or attempt to create a substitute or similar product or service through the use of or access to the Sites, the Site Materials, the Services or any proprietary information related thereto; or
i. use the Sites, the Site Materials or the Services other than for their intended purpose.
Any use or attempted use of the Sites, the Site Materials or the Services other than as specifically authorized herein, without the express prior written permission of Fidelis or its licensors, is strictly prohibited. Except as explicitly stated herein, nothing in these Terms of Use or any applicable Additional Terms shall be construed as conferring any license to any intellectual property rights of Fidelis or its licensors. The licenses granted herein are revocable at any time, in Fidelis's sole discretion.
4. Copyright Complaints. If you believe that material on any of the Sites infringes upon any copyright which you own or control, send a notification of such claimed infringement to Fidelis's Designated Agent as set forth below:
Name of Agent Designated to Receive Notification of Claimed Infringement:
Robert Rackleff
Director of Finance
116 New Montgomery Street
Suite 237
San Francisco, CA 94105
415-967-0940
To be effective, a notification of claimed infringement must be a written communication provided to the Designated Agent and include substantially the following:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
b. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single Site are covered by a single notification, a representative list of such works at that Site.
c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Fidelis to locate the material.
d. Information reasonably sufficient to permit Fidelis to contact the complaining party, such as a current, valid address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
e. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
f. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receipt of such notification, Fidelis or the Designated Agent will remove or disable access to such material and give notice of a claim of copyright infringement to the user or subscriber who authored the claimed infringing content by means of any one or more of the following methods at Fidelis's sole option: a general notice on the Sites, electronic mail to the content provider's email address in Fidelis's records, or by written communication sent by first-class mail to such user's postal address in Fidelis's records.
Counter Notification. A provider of content subject to a claim of infringement may make a counter notification. To file a counter notification with Fidelis, please provide the Designated Agent a written communication containing the following:
a. A physical or electronic signature.
b. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
c. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
d. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your postal address is located, and that you will accept service of process from the complaining party who submitted the infringement notification or his, her or its principal or agent.
Upon receipt of such counter notification, Fidelis will promptly provide the complaining party that provided the notice of claimed infringement with a copy of the counter notification, and inform the complaining party or entity that Fidelis will replace the removed material or cease disabling access to it in 10 business days. Fidelis will replace the removed material and cease disabling access to it between 10 and 14 business days following receipt of the counter notice, unless Fidelis's Designated Agent first receives notice from or on behalf of the copyright owner that such person or entity has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on Fidelis's Site(s).
5. Trademarks. All marks displayed on the Sites are trademarks of Fidelis or its suppliers or licensors, and may not be used, in whole or in part, without the express prior written permission of Fidelis or the applicable trademark holder. 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 Fidelis.
6. Hyperlinks. Fidelis makes no claim or representation regarding, and accepts no responsibility for, third-party websites accessible by hyperlink from the Sites, or third-party websites linking to the Sites. Such sites are not under the control of Fidelis and Fidelis is not responsible for the contents of any linked-from or linked-to site or any link contained in a linked-from or linked-to site. When you leave the Sites, these Terms of Use will not govern your use of any third-party site, which will then be subject to that site's terms of use, if any, and its privacy and data gathering policies.
7. License. You are granted a limited, non-exclusive right to create a text hyperlink to publicly available Sites for noncommercial purposes, provided such link does not portray Fidelis or any Site or Service in a false, misleading, derogatory or otherwise defamatory manner or light, and provided further that the linking site does not contain any adult or illegal material or any material that is, in Fidelis's sole opinion, offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use any Fidelis mark to link to the Sites without the express prior written permission of Fidelis. Except as expressly stated above, you are not conveyed any right or license by implication, usage, custom, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Fidelis or any third party.
8. Third Party Content and Applications. The Sites may include third-party content and may provide links to web pages and content of third parties ("Third-Party Content"). In addition, the Sites may include certain applications, features, programs and services provided by third parties ("Third-Party Applications"). Fidelis does not monitor Third-Party Content or Third-Party Applications and makes no representations or warranties with respect thereto. Fidelis is not responsible or liable in any manner for any Third-Party Content or Third-Party Applications, or for any loss, liability, harm or damages of any sort incurred as the result of your use thereof or access thereto. The Third-Party Content and Third-Party Applications are provided "as is." Third-Party Content and/or Third-Party Applications may be subject to additional terms and conditions or agreements between you and the provider thereof, and you agree to fully comply with all such additional terms, conditions and agreements. You use such Third-Party Content and Third-Party Applications at your own risk.
9. Third-Party Products, Services, Advertisements and Promotions. Fidelis may provide information about or links to third-party products or services on the Sites or may display third-party advertisements or promotions on the Sites. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Fidelis is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such advertisers or third-party information on the Sites.
10. User Content and Conduct. The Sites or the Services may include public or restricted access discussion forums, or other interactive areas or services ("Interactive Areas") in which you or other users may create, post or store any content, messages, materials, data, information, text, music, sound, photos, video, graphics, code or other items or materials on the Sites ("User Content"). Interactive Areas are provided "as is". You are solely responsible for your use of such Interactive Areas and use them at your own risk. If you post User Content, you agree that your User Content will be accessible and viewed by others. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Sites any of the following:
a. User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
b. User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
c. User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
d. User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
e. Any unauthorized commercial use such as, but not limited to, engaging in unsolicited promotions, political campaigning, advertising, or solicitations, hyperlinking off of the Sites, or collecting names and emails addresses for the purpose of sending unsolicited emails;
f. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
g. Viruses, corrupted data or other harmful, disruptive or destructive files; and
h. User Content that, in the sole judgment of Fidelis, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Sites, or which may expose Fidelis or its users to any harm or liability of any type.
This list of prohibitions provides examples and is not complete or exclusive.
By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content. You further agree not to access or attempt to access any Interactive Areas which you are not authorized to access or to provide or facilitate access to any nonpublic Interactive Area by any unauthorized user. Any use of the Interactive Areas or other portions of the Sites, the Site Materials or the Services in violation of these Terms of Use, may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Sites, the Site Materials or the Services.
Fidelis takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or resulting therefrom, nor is Fidelis liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Fidelis is not liable for any statements, representations or User Content provided by its users in any public forum, personal home page or other Interactive Area. Accordingly, Fidelis has no obligation to screen, edit, or monitor User Content or the Interactive Areas. However, Fidelis reserves the right, and has absolute discretion, to refuse, block, move, or remove any User Content posted or stored on the Sites at any time with or without cause and for any reason or no reason, with or without notice. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Fidelis's systems and customers, or to ensure the integrity and operation of Fidelis's business and systems, Fidelis may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (e.g., name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted User Content. Fidelis's right to disclose any such information as set forth herein shall supersede and control any conflicting terms of Fidelis's Privacy Policy.
Except as explicitly indicated in these Terms of Use, or unless otherwise indicated on the Sites or in connection with your use of the Services, if you post User Content to any of the Sites or in connection with the Services, you retain all rights in and to such User Content. You grant Fidelis and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any and all media and platforms, whether now known or hereafter developed. You grant Fidelis and its affiliates and sublicensees the right to use the name that you submit in connection with such User Content, at their sole discretion. You specifically acknowledge and agree that Fidelis has the right to sell, license and/or display any advertising, promotional and distribution rights in connection with your User Content and Fidelis will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, promotional or distribution rights. No royalties will be paid to you or any third party for your User Content. Nothing in these Terms of Use obligates or may be deemed to obligate Fidelis to sell, license or offer to sell or license any advertising, promotion or distribution rights. You represent and warrant that:
a. you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Sites and license such User Content to Fidelis and its affiliates as herein provided;
b. the User Content is accurate and not misleading; and
c. the use and posting of the User Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.
11. Representations; Registration Data; Account Security. In consideration of your use of any of the Sites, the Site Materials and the Services, you represent you are of legal age to form a binding contract. In consideration of your use of any of the Sites, the Site Materials and Services, you agree:
a. To provide accurate, current and complete information about yourself as may be prompted by any registration forms on the Sites ("Registration Data");
b. To maintain and be solely responsible for the security of your password and identification;
c. To maintain and promptly update the Registration Data, and any other information you provide to Fidelis, to keep it accurate, current and complete; and
d. To accept all risks of unauthorized access to the Registration Data and any other information you provide to Fidelis.
12. Submissions Relating to Site(s) or Services. You acknowledge and agree that, except for User Content submitted in an Interactive Area, any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials, images or other information regarding the Sites, the Site Materials, the Services or Fidelis provided by you on the Sites or other sites are non-confidential and shall be the sole property of Fidelis. Fidelis shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
13. Indemnification. You agree to defend, indemnify and hold harmless Fidelis, its affiliates, independent contractors, service providers and consultants, and their respective directors, employees and agents (collectively, "Indemnitees"), from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to your use of the Sites, the Site Materials, the Services and any of your User Content, including without limitation, any actual or threatened suit, demand or claim made against any Indemnitee, arising out of or relating to the User Content, your conduct, your violation of these Terms of Use, or the Privacy Policy, as each may be amended from time to time, or your violation of any law(s), regulation(s), or the right(s) of any third party.
14. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY FIDELIS, THE SITES, THE SITE MATERIALS CONTAINED THEREIN, THE SERVICES, AND ALL CONTENT MADE AVAILABLE ON, CONTAINED IN, OR ACCESSED THROUGH THE SITES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. FIDELIS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FIDELIS DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AND MATERIALS ON THE SITES OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. FIDELIS DOES NOT REPRESENT OR WARRANT THAT THE SITES OR THEIR HOST SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Fidelis reserves the right to change or delete any and all Site Materials or User Content contained in the Sites and any Services offered through the Sites at any time without notice.
15. Limitation of Liability. IN NO EVENT SHALL FIDELIS, ITS OFFICERS, DIRECTORS, AFFILIATES, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SITES, THE SITE MATERIALS, THE SERVICES, THE INTERACTIVE AREAS, OR THE USER CONTENT, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM FIDELIS, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FIDELIS'S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FIDELIS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITES, THE SITE MATERIALS, THE SERVICES, THE INTERACTIVE AREAS OR THE USER CONTENT EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO FIDELIS FOR ACCESS TO OR USE OF THE SITES. IF YOU ARE A STUDENT, YOU ACKNOWLEDGE THAT NO PORTION OF YOUR TUITION SHALL BE CONSIDERED COMPENSATION PAID FOR ACCESS TO OR USE OF THOSE SITES ACCESSIBLE TO STUDENTS AS PART OF THEIR PROGRAM OR COURSE OF STUDY. HOWEVER, IF YOU PAY RESOURCE FEES OR ACCESS FEES TO FIDELIS, A PORTION OF SUCH FEES MAY BE CONSIDERED COMPENSATION FOR YOUR USE OF SUCH SITES.
16. Applicable Law and Venue. These Terms of Use and your use of the Sites, the Site Materials and the Services (except as otherwise may be provided with respect to Third-Party Applications) shall be governed by and construed in accordance with the laws of the State of [California] applicable to agreements made and to be entirely performed within the State of [California], without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms of Use (except as may be provided with respect to third-party copyright complaints) shall be filed only in the state and federal courts located in San Francisco, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Use.
17. Termination. Notwithstanding anything to the contrary in these Terms of Use, Fidelis reserves the right, without notice and in its sole discretion, to terminate your license to use the Sites, the Site Materials, the Services or any portion thereof, and to block or prevent your future access to and use of any of the Sites, the Site Materials or the Services.
18. Severability. If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, then that provision shall be modified by such court to the minimum extent necessary to make such provision enforceable and, if such modification is not possible, such provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.
