TERMS OF SERVICE FOR USAGE OF VERGE PLATFORM

Notice to user:  Please read this Terms of Service (“Agreement”) carefully before using the Verge Platform (also referred to as “Platform”) for delivering teletherapy services; accessing the content library; accessing continuing education courses or other related services delivered through the Platform (collectively referred as “Services”). The Services are offered by Verge Learning, Inc. (“Verge”) and by clicking or selecting the “I Agree” button or check box, or by using in any manner the Services offered by Verge, You (either as an individual, clinician or through your organization) agree to be bound by the terms and conditions of this Agreement. By using the Services, you also agree that You are authorized to represent Your organization and bind Your organization to the terms and conditions of this Agreement. If You do not agree to the terms and conditions of this Agreement, do not use the Services.

Verge owns all rights, interest, title / ownership and all intellectual property and any Derivative Works in the Platform, Components, Courses, Improvements and Services. Verge permits You to Use the Services only in accordance with the terms and conditions of this Agreement.  For some third-party materials, components or third-party software included in the Platform and Services, Verge has the right to sublicense the same to You under the terms and conditions in this Agreement and such third-party software may be subject to other terms and conditions typically found in a separate license agreement”

  1. DEFINITIONS.

    “Derivative Work” shall mean a work created by You based on or incorporating a portion of or the complete Services and or the Documentation, including but not limited to translations, abridgements, condensations, improvements, updates, enhancements, or any other form in which the Services and / or the Documentation that may be recast, transformed, adapted, or revised.

    “Effective Date” shall be the date of the agreement or purchase order or other formal means by which You have subscribed to the Services with Verge or with an authorized third party. In all other cases, Effective Date shall mean the date You subscribe to Services using online subscription offered by Verge.

    “Permitted Number,” shall mean the number of licensed subscriptions authorized to You for usage pursuant to a purchase order or a proposal or a contract or a separate arrangement executed between You and Verge or a third-party authorized by Verge to offer the license for subscription to Services. If You are using the Services subsequent an online subscription through Verge, Permitted Number shall mean the number of licenses You have subscribed through such online subscription.

    “Platform” shall mean the teletherapy platform, content library platform, , continuing education platform (XceptionalEd / xceptionaled.com) and other offerings provided by Verge to its subscribed users either directly or through authorized third parties. The Platform shall also include without limitation, all software application in source code or object form used in developing the Platform; content library developed and offered by Verge and other content(s) offered by third parties (collectively referred as “Content Library”); third-party software or application(s) or components used in the Platform for providing Services (collectively referred as “Components”); all technical documentation, technical and non-technical training material, source code documentation in any form, source code manual etc. (collectively referred as “Documentation”); continuing education materials and courses developed and offered by Verge and other third parties (collectively referred as “Courses”) and all other developments and improvements to the Platform including but not limited to bug fixes, enhancements, feature additions, improvements, updates and or upgrades (collectively referred as “Improvements”).

    “ Term” shall mean the Term for which You have subscribed to the Services for the Permitted Number of licensed subscriptions.

    “Use” or “Using” or “Usage” means to access, use or copy the Services or otherwise benefit from using the functionality of the Services including viewing or receiving of reports using the Services. Use or Using or Usage also includes Use of the Services by Your consultant or sub-contractors or third party who is authorized to Use the Services as set forth or explained in this Agreement.

    “You” or “Your” shall mean the person or individual licensed to use the Services either as an individual or through a company or organization which has a licensed subscription to the Services.

  2. GRANT OF LICENSE. As long as You comply with the terms of this Agreement, Verge grants You a non-exclusive, non-transferable, non-sublicensable license to access and Use the Services during the Term of the subscription.

    2.1 General Use. You may access and Use the Services up to the Permitted Number of licensed subscription(s). You are solely responsible for Your use of the Services and shall abide by, and ensure compliance with, all laws while using the Services including but not limited to laws related to recording, intellectual property, privacy, and export control.

    2.2 Business Use.  If You are a company, organization or business, You shall ensure that the users authorized by You shall comply with the terms and conditions in this Agreement and You shall ensure that such usage is restricted to delivery online therapy on Your behalf or for accessing the Content Library and Courses to deliver online therapy on your behalf. You are restricted from granting access to special educators working as employees or contractors with schools and districts, clinicians’ workings for other clinics etc. However, You may grant access to employees and consultants employed by You.

    2.3 Compliance to HIPPA guidelines. You shall ensure that You comply with all HIPPA guidelines with respect to storing, accessing and use of information about participants including patients requiring teletherapy and the Services offered by Verge.

    2.4 Best Business Practices.  You shall follow all the best business practices and ensure to conduct in a professional manner while using the Services. You shall ensure that (a) You have necessary rights to share content or information and that  You do not violate any intellectual property right while sharing such content or information as part of using the Services; (b) You shall not share information which is inappropriate for the occasion including obscene, defamatory, pornographic, offensive, or information that is racist, spreads hatred etc.; (c) You shall not publish or share any unsolicited information including marketing of products or services; and (d) You shall not engage in activity that is illegal or does not fit the primary purpose of using the Services.

    2.5 Access during Courses. You may have access to content as part of Course and You agree not to copy or use the Courses in any form that causes harm to Verge either directly or indirectly.

    RESTRICTIONS.

    3.1 You shall not modify, adapt, copy or translate the contents of the Platform and Services. You shall not reverse engineer, decompile, disassemble or modify any portion of the Platform and Services or merge portion of the Platform and Services, in whole or in part, nor shall otherwise attempt to discover the source code or develop a source code version of the Platform and Services. 

    3.2 You shall not modify or copy the Services and related materials to create Derivative Works.

    3.3 You shall not sublicense, assign, or transfer the license granted hereunder or any part of the Services, except as expressly provided in this Agreement and that any attempt to do so shall be invalid and will automatically terminate the license or subscription to Services and this Agreement.

    3.4 Verge shall retain title to the Platform and Services including any Derivative work, trademarks, all written Documentation, and any ancillary data or information concerning the Services.  Verge also retains all rights in copyrights or patents applicable to the Services, including the computer programs, all ancillary written documentation, and materials.

    3.5 Transfer and Assignment. This license is to the original buyer (You) and You may not sell or assign or transfer to or permit usage by another person/entity except with the written permission of Verge. You may not, rent, lease, sublicense, assign or transfer your subscription. You may, however, transfer or assign all Your rights to Use the Software to another person or legal entity as a part of permanent sale or transfer of Your business provided that: (a) You also transfer (i) this Agreement;  (b) You retain no copies of credentials to access the Services and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which You legally acquired a license for the Services.

    3.6 Warranty.  Verge represents and warrants that (a) it has the right to grant You all rights and licenses granted under this Agreement; (b) the Services does not infringe upon any copyright, trademark, or any intellectual property right of any third party and (c) the performance or results You may obtain by Using the software. You accept the license to Services is granted “as is,” with no other express or implied warranties or conditions of any kind, including, without limitation, warranties of merchantability or fitness for a particular purpose. Verge makes no warranties regarding the application(s) or the media of the products owned or developed by You or with respect to any third-party software. Verge makes no representations or warranties of any kind with respect to any Components used in Services. To the extent permitted by Verge’s contract with the owner of any such Components, Verge will assign to You any rights that Verge may have under such owner’s warranty.

    3.7 Non-Compete. You agree that You will not granting access to special educators working as employees or contractors with schools and districts, clinicians’ workings for other clinics etc. to provide online therapy and related services using Verge’s Services. You also agree that, unless agreed in writing by Verge or subject to a separate agreement, You will not be using Services offered by Verge (to Your clients including but not limited to school districts and clinics) either to be bundled or integrated with Your offerings or solutions.

    3.8. No Rental / Commercial Hosting / Webinar / Broadcasting. You agree not to rent, host or broadcast as a webinar or otherwise, the Services, the Courses, Content Library etc. offered by Verge without prior written consent by Verge.

    3.9. Consent to use data. You agree that Verge may collect and use information gathered as part of the Services provided to You for improving the quality of Services or providing customized services. You agree to the use of such collected data by Verge.

  1. INDEMNIFICATION AND PATENT INFRINGEMENT.

4.1 Verge represents that it owns all patented or copyrighted material contained in and all trade secrets with respect to the Services, Documentation, Content Library, Courses except for Components used in Platform and Services. Verge represents and warrants that it has all necessary rights and licenses to carry out its obligation under this Agreement. 

4.2 You shall promptly notify Verge in writing of the assertion of any such claim that the Services violates the trade secret, trademark, copyright, patent, or other proprietary right of any other party. You shall cooperate with Verge in investigating and resolving any such claim. Verge shall defend You against any such claims and shall indemnify and hold You harmless from any liability for damage and costs, arising out of the subject matter of this paragraph incurred in connection with any such claim provided that (a) Verge is informed in writing within 48 hours of such claim and (b) Verge shall have the sole control of the defense and settlement. 

4.3 Notwithstanding anything else to the contrary in this Agreement, Verge shall not indemnify You against any claim or liability based on Your (including Your consultant’ or subcontractors or third parties authorized to use the Services) (a) modification or conversion of the Services or (b) the subsequent use of such modification or conversion or (b) the use or combination of the Services with other services software or Computers programs or data not supplied by Verge. 

4.4 You agree to indemnify and hold Verge, its partners, directors, officers, employees and agents harmless from any and all liabilities, losses, actions, damages, or claims (including all expenses, costs, and attorney’s fees) arising out of Your ( including Your consultant’s , sub contractor’s or third parties  authorized to Use the Software) (a) gross negligence or willful misconduct (b) improper Use and or installation of the Software; (c) reliance on any claims, misrepresentation or warranties not made by Verge  (d) negligence or willful misconduct resulting in any death or bodily injury; (e) violation of intellectual property rights of Verge (f) unauthorized Use or licensing or Distribution of the Services , report templates and reports; (g) modification or conversion of the Software or the subsequent use of such modification or conversion; (h) violation of confidential information and (i) violation of any export laws or any other act. 

4.5 If the Services becomes or, in Verge’ opinion is likely to become the subject of the claim of infringement of a patent, trade secret or copyright, Verge may either (i) procure at no cost to You, the right to continue to Use the Services during the Term, (ii) replace modify the Services at no cost to You to make the Services non-infringing, provided that the same function is performed by the replacement or modifications, or (iii) if any of the above alternatives are not commercially viable, terminate the Agreement and the right to use such Services and where a specific fee was paid by You during the 3 month period prior to such infringement claim and grant You a credit thereon. 

  1. INTELLECTUAL PROPERTY OWNERSHIP, COPYRIGHT PROTECTION. The Platform and the Services offered by Verge to You under this Agreement are the intellectual property of Verge and are owned by Verge. The structure, organization and code of the software or computer programs in developing the Platform and Services are the valuable trade secrets and confidential information of Verge. The intellectual property in the Platform and the Services is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant You any intellectual property rights in the Platform and Services or any rights to trademarks or service marks of Verge and all rights not expressly granted are reserved by Verge. 
  1. LIMITATION OF LIABILITY. In no event will Verge be liable to You or to any third party for any damages, claims or costs whatsoever or for any consequential, indirect, incidental damages, or for any lost profits or lost savings, even if Verge has been advised of the possibility of such loss, damages, claims or costs. In no event will Verge’s aggregate liability under or in connection with this Agreement exceed the amount paid by You for the licenses and the unexpired portion of support / maintenance fees. 
  1. GOVERNMENTAL REGULATIONS AND RESTRICTIONS. You agree that the Services provided under this Agreement may be subject to regulations including export laws of countries where Services are offered including United States of America. You are solely responsible for monitoring and complying with regulations including export laws of the specific country where Services are offered and performed. 
  1. GENERAL PROVISIONS.

8.1 If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms.

8.2 This Agreement shall not prejudice the statutory rights of any party dealing as a consumer.

8.3 This Agreement may only be modified by a writing signed by an authorized officer of both parties.

8.4 This is the entire Agreement between Verge and You relating to the Services and it supersedes any prior oral or written agreements or representations or discussions or undertakings or communications or proposals or advertising relating to the Software.

8.5. You agree that upon request from Verge or Verge’s authorized representative, You will within thirty (30) days fully document and certify that Use of any and all of the Services at any time is in conformity with the Permitted Number licensed from Verge and Used as per the terms and conditions of this Agreement.

  1. COMMERCITAL TERMS, TERM AND TERMINATION.

9.1 Commercials. You shall pay the periodic subscription for accessing and Using the Services as and when due for uninterrupted use of Services. Taxes if any on such subscription of license fee shall be charged to You as part of subscription / license fees. Fees paid once are not refundable either in part or in full.

9.2 License Term or Term of subscription. The license term shall be valid from Effective Date until (a) the end of the period for which payment has been made; (b) You or Verge cancel the license or subscriptions subject to 9.3; and (c) the license or subscription is automatically terminated as mention in Section 9.4.

9.3 Cancelation of subscription or License. You may terminate this subscription or license at any time by accessing Your account. However, the fees paid for the unexpired portion of the term upon cancelation is non-refundable. Verge may terminate or cancel the license or subscription upon non-payment or for violation of terms and conditions of this Agreement.

9.4 Automatic Termination. The license to Services shall be terminated automatically either upon (a) expiry of the Tern or (b) violation of the terms and conditions in the Agreement. 

9.5. Usage post termination. Upon expiration of term or termination of license / subscription as explained in Section 9, You will immediately lose access to Platform, Services, Components, Courses and Improvements.

9.6 Survival Provisions. The provisions of Section 4, 5 and 7 shall survive the termination of this Agreement.

  1. GOVERNING LAW. This Agreement will be construed in accordance with and governed by the laws of the State of California and the United States of America that would be applied to contracts entered between California residents to be performed entirely within California without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.
  1. JURISDICTION; WAIVER OF JURY TRIAL. Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal proceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of California or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to personal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara, State of California. Each party hereby waives its right to a jury trial for any claims that may arise out of this Agreement.
  1. ASSIGNMENT. Assignment. Without the prior written consent of Verge, You will not assign or otherwise transfer Your rights and obligation(s) in whole or in part, under this Agreement, and any attempt to do so will be null and void. However, Verge may transfer or assign its rights under this Agreement to a third party.
  1. LINKS TO THIRD PARTY SITES. Verge is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. Any links provided and the inclusion of any third-party links by Verge does not imply an endorsement by Verge of the third-party site or their products or services.
  1. FORCE MAJEURE. In no event shall Verge be liable for any failure or deficient or delay in performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or disturbances or malfunctions of utilities, internet and communications, or computer and server (software and hardware) services.
  1. SUPPORT FOR SERVICES. As long as You have a valid licensed subscription, Verge shall, during the Term of this Agreement, provide technical support for the Services according to Verge’s then prevailing support policies and standards.

You acknowledge that You have fully read this Agreement, understands it, and agree to be bound by its terms and conditions.

CONTACT: Verge Learning Inc., 2000 W Hedding St, Ste 214, San Jose, CA 95128, USA.

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