TERMS & CONDITIONS OF USE FOR DIVERSE NETWORK ASSOCIATES, INC., (a California corporation, D/B/A “CATAPULT K12”)
IMPORTANT LEGAL NOTICE FOR CATAPULT EMS CLIENTS
CATAPULT EMS (or sometimes, “we” or “our”) is an online platform and/or smart phone “app” (collectively, the “System”) created to help detect and manage emergencies or potential threats to sites or district administrative buildings. In general, individuals, educators and administrators can feed information into the System, which can then be accessed by designated administrators, typically someone in a school district, to then classify the nature of an event and coordinate status changes, the whereabouts of students and staff, and to send push-notices to parents, emergency response teams and others with an interest in the events at hand.
SECTION 1: DEFINITIONS
- “CATAPULT” shall mean DIVERSE NETWORK ASSOCIATES, INC., a California corporation (D/B/A Catapult K12), its principal office located in California, or the successor in interest, assign or transferee.
- “CATAPULT EMS Site” means the website found at www.CatapultEMS.com, and all pages and subdomains related thereto.
- “Content” means all information, documents, text, graphs, graphics, charts, videos, or other materials uploaded or downloaded using the System or otherwise appearing on the CATAPULT EMS Site.
- “Contributor(s)” means any person or group who inputs photos, text, video, data, or other information about an Event, and a “Contribution” is the information a Contributor puts into the Catapult EMS Site.
- “Event” means any emergency or potential emergency occurrence on or near a site or administration building, such as fire, terrorist attack, predator or natural hazard.
- “Event Notices” are email, text or other forms of notices sent out from the Catapult EMS Site to various groups of interested parties, such as sending notices of an Event to the parents of students affected or potentially affected by an Event.
- “Facility” means the district offices, sites and other areas associated with the management and operation of a district and its sites.
- “Facility Administrator” means the person or persons who are authorized to set or change the emergency status of an Event, and to disseminate “Event Notices.”
- “Facility Page(s)” means the portion of the System that is devoted to its specific site, district or organization.
- “Permitted Use” has the definition given throughout this document, below.
- “Private Users” (sometimes referred to as the “Client”) are people who use the System that are part of a site which is a client under contract with CATAPULT, such as teachers in a school district.
- “System” means the website, phone “app” or other method of using or accessing the Services.
- “Public Users” are members of the public who access or use the System, whether as a Contributor or a party receiving Event Notices.
- “Services” shall mean all support, access, use of websites, use of any related applications, and/or services offered by CATAPULT, which may be altered or changed from time to time.
- “User Account” shall mean a User’s account created on the CATAPULT EMS Site which includes personal, contact, and other information requested by CATAPULT related to the User.
- “Users” includes all users, whether Private Users or Public Users.
SECTION 2: ACCEPTANCE OF TERMS AND PERMITTED USES
The Company may, in its sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the rights to access the Services are rescinded/revoked in those jurisdictions.
Grant of License to Use. CATAPULT hereby grants to each User a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services solely for the purposes authorized herein (the “Permitted Uses”), and subject to the User’s compliance with all of the provisions set forth in these Terms:
- for all Users: to use the System as it is intended to be used, subject to these Terms;
- for all Users: to view certain unrestricted Content on the Site and receive and respond to Event Notices;
- for Private Users: to add Content which is truthful and accurate to the appropriate Facility Page;
- for all Non-Users (Members of the Public): to receive Event Notices related to an Event which does or may concern a Non-User’s own family, staff or property.
- for Facility Administrators: to access the appropriate Facility Page on the System and establish and revise the Event status;
- for Facility Administrators: to access its own Facility Page and send Event Notices through the System to all Users and interested parties; and,
- for all Contributors: to access the System for the purpose of inserting information on an Event.
Prohibited Actions. In addition to any other activity which CATAPULT decides and informs Users is not allowed or inappropriate (in CATAPULT’s sole discretion), the User shall not:
- permit any access or use of the System, the Catapult EMS Site, or use the Services except as permitted herein;
- modify, reverse engineer, decompile, or otherwise attempt to discover or copy the System software used to provide the Services;
- create derivative works based on the System software used in the Services;
- copy, frame, mirror, or reproduce any part or content of the System or Services, including any CATAPULT mark or logo;
- exploit software or any bugs in the System for any purpose not expressly permitted by these Terms & Conditions;
- use the System for any unauthorized or unsolicited commercial activity or communications;
- use the System to disseminate false, misleading, provocative, or other illegal or immoral data in the Contributions, or to misuse the Contributions of others in an illegal or unethical manner;
- use the System, Services or Site for any illegal or immoral purposes;
- to misuse, impair or infringe on the rights of any other person, whether a User or not;
- submit Content that infringes any patent, trademark, trade secret, copyright, right of publicity, or other right of any other person or entity, or violates any law or contract;
- submit Content that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another’s privacy;
- take any action which is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
- attempt to impersonate any person or entity, including any employee or representative of CATAPULT;
- take any action that misrepresents or otherwise disguises the source of Contributions that the User uploads using the Service, including by using an alias, disguising the source IP address of the uploaded Content, or similar processes and behaviors;
- limit its use only to the appropriate Facility Page having to do with his/her/its own site or district, except where appropriate;
- use the Services in any manner that could damage, disable, overburden, or impair the Services or another User’s use of the Services; or,
- remove, obscure, or change any copyright, trademark, hyperlink, or other proprietary rights or notices contained in the Services.
As a condition of use, each User promises not to use the Service for any purpose that is prohibited by these Terms & Conditions or provided by law. Every User is responsible for all of his or her own activity in connection with the Service. Users shall not, and shall not permit any third party using a User’s account to violate any rule stated herein.
Ownership of the System, Content & Services. These Terms provide access to, and permit use of the Catapult EMS Site, System and the Services, and provides for the hosting of all Content for the purpose of providing the Services to all Users. However, these Terms do not constitute a sale of any title or interest in any software or other methodology or content used to provide the Services. All software, methodology and Content, and all proprietary and intellectual property rights contained therein, provided by CATAPULT or which are downloaded to, used by, or part of the Catapult EMS Site are expressly reserved to and shall remain the sole and exclusive property of CATAPULT. Even in the event that CATAPULT is hired to create custom or unique features, code, functions or other modifications (“Enhancements”) for a particular User, all Enhancements shall be and remain the sole property of CATAPULT, whether real or personal, tangible or intangible.
SECTION 3: FEES FOR CERTAIN SERVICES
The use of the System is limited to Private Users under a separate Application License and Support Agreement (“ALS Agreement”), incorporated by this reference, and by revocable limited license to use the System for all other Users. Any breach of the ALS Agreement shall be a breach of these Terms, and vice versa.
SECTION 4: DUTIES OF FACILITY ADMINISTRATOR AND PRIVATE USERS
General Duties of Private Users. All Private Users must conform and comply with these Terms, and the ALS Agreement.
True and Accurate Information. It is acknowledged that emergency situations might include hazy or only partial information; all Private User Contributions shall be honest and truthful in every respect and shall only provide information that it has the express legal rights to offer, divulge or use. In the event any User or third party reasonably determines that information in another User’s Contribution is false, misleading, defamatory or breaches the privacy rights of another party, that User can forward a request to remove the Contribution to [email protected] (generally, “Request For Removal”). CATAPULT makes no representations that it will remove the Contributions, or do so in any particular timeframe, nor will CATAPULT’s receipt of a Request For Removal in any way alter or expose CATAPULT to any affirmative duty to police or remove Contributions, or be responsible in any way for the Contributions of a third party or User.
Retraction of False Information. The Facility Administrator shall immediately correct, delete or retract any false or misinformation on its Facility Page.
Protection of Confidential Medical Information (HIPAA). To the extent a User handles, discloses, includes, discusses or otherwise might divulge medical information or statistics, it shall do so strictly in conformity with the Health Insurance Portability and Accountability Act (HIPAA) and all other applicable state and federal rules, including any privacy laws in the State of California. No personally identifiable medical information for any person is permitted except as is necessary and authorized by the appropriate parties.
Special Indemnification by Client For Breach. Notwithstanding anything to the contrary, and as supplemental to other indemnity provisions and not instead of such other indemnity provisions, the Client agrees to hold harmless and indemnify CATAPULT (and any employee, officer, director or affiliate of CATAPULT) (including costs and attorneys’ fees) from any claim, loss, lawsuits, attorneys’ fees, fines, or expenses which arise from the use or misuse, or from the failure to comply with these Terms, by the Private Users, Facilities Administrator or other agent of the Client. Each Client agrees that the provisions in this paragraph will survive any termination.
SECTION 5: RESPONSIBILITIES AND PROMISES OF CATAPULT
Support Services; Availability. CATAPULT intends to offer the System to the Users, and to use commercially reasonable efforts to maintain the consistent access to and use of the System. However, the System is constantly being updated, serviced, maintained, altered and/or modified, and is subject to disruption from external sources as well, whether by hackers, power interruptions, or the like. All of the Services are provided on an “As-Is” and “As Available” basis without warranty as to the minimum level of service, uptime, or otherwise. Each User understands and accepts downtime, bugs, service time and other interruptions to the use of the System. CATAPULT makes no guarantees as to the “uptime” or access to the System, nor the minimum functionalities of the System, and each User hereby releases CATAPULT from any downtime, bugs or service times, even in the event that such downtime, bugs or service times might happen to occur at the same time of an emergency when the effective use of the System is critical, but not available due to the downtime, bugs or service times.
Security. Except to the extent permitted by these Terms, CATAPULT will maintain customary and reasonable policies and practices to ensure the information of Users and student information for a Facility Page are safeguarded and kept confidential (the “User Content”). However, CATAPULT does not warrant or guarantee that a software glitch, hacker attack, or other circumstance will not cause an unauthorized disclosure or the destruction of User Content. User acknowledges and agrees that CATAPULT shall not be liable for such unauthorized disclosures, misuse or destruction of User Content.
SECTION 6: RESPONSIBILITIES AND ASSURANCES OF USERS
No Unauthorized Use. Users will only use the Services in compliance with the License, for the Permitted Uses, and will not engage in any actions not explicitly authorized herein. User will promptly notify CATAPULT of any unauthorized use of, or access to, the CATAPULT EMS Site or the Services of which it becomes aware and will cooperate with CATAPULT to prevent or minimize such misuse.
Warranties By Users. User represents and warrants (i) that he/she/it has all rights necessary to upload the User’s Content and to permit CATAPULT to display the Content on its system, computer or phone, (ii) that uploading the User’s Content will not constitute a violation or infringement of any third parties’ right or interest in such Content, (iii) that any Content is free from any virus or disabling device; and (iv) that no Content is false or materially misleading. User acknowledges and agrees that it has not relied upon CATAPULT regarding the accuracy of any Content and that CATAPULT does not endorse, support, represent, or guarantee the completeness, accuracy, or reliability of any Content on the Site except as expressly stated herein.
Protection of Confidentiality. User acknowledges that the System belongs to and is owned by CATAPULT. User agrees to keep any confidential information in strict confidence and to use the Confidential Information solely pursuant to these Terms and shall not disclose such information to any third party except User’s agents, employees, and consultants on a need to know basis. Any breach or threatened breach of this provision could cause damages that are difficult to ascertain, and therefore User shall consent to an ex-parte injunction for CATAPULT to prevent or stop the breach, and shall entitle CATAPULT to any and all remedies at law and/or equity, including but not limited to injunctive relief and specific performance, without any obligation to post bond.
Maintain Accurate User Information. Each User represents that the information provided related to its User Account is true, accurate, and complete. The User shall update all User Account information and ensure that all such information is true and correct at all times.
SECTION 7: RIGHTS RESERVED; WARRANTIES AND LIABILITY; INDEMNITY
Right to Exclude. CATAPULT may refuse use of the System to any person for any lawful reason, including without limitation, to prevent a User from accessing the System or making a Contribution, in CATAPULT’s sole and absolute discretion.
Disclaimed Duty to Police Content. CATAPULT has no obligation to monitor, control, accept, review, or update any Content, Event Notices or other materials on the System. CATAPULT is merely a conduit for the flow of information from various closed and open sources that relate to Events. Each User specifically agrees to independently verify all Content and Event Notices, and in no case shall CATAPULT be responsible for any misleading, false or other bad Content provided by the Users. In the case where CATAPULT is made aware of misleading, false or other bad Content, it has the right (but not the obligation) to remove such Content from the System.
Right to Post or Include Ad Spots. The System may contain, display, use, include and/or deliver advertising and sponsorships on the Site, in any Event Notices or other portions of the Site. CATAPULT is not responsible for the illegality or any representation, error, inaccuracy or problem in the advertiser’s or sponsor’s Content.
Third-Party Software Integrations. CATAPULT may integrate with services provided by third parties of its choosing. CATAPULT does not warrant or guarantee the quality or performance of any services provided by such partners, and User hereby waives and releases any claims against CATAPULT that such User may have related to the services provided by such partners.
Limitation of Liability. For valuable consideration, each User agrees that CATAPULT’s liability, if any, arising out of or in connection with the access to, use or performance of the System shall not exceed the amounts previously paid by that same User to CATAPULT for the use of the System, and always subject to the other limits and indemnities provided in these Terms.
Disclaimer of Limited Warranties. CATAPULT makes no warranties regarding the performance or use of the system or the Catapult EMS Sites, and user receives no other warranty whether written, oral, expressed, implied, or statutory except as stated in these terms. In particular, CATAPULT makes no warranty that any user will receive any particular benefit; detect, avoid or accurately describe any event; or otherwise achieve any particular objective desired by such user. All warranties of merchantability and fitness for a particular purpose are expressly excluded. All services are provided on an “As-Is” basis and are used at the user’s own risk. CATAPULT shall not in any case be liable for special, incidental, consequential, exemplary, indirect or other similar damages incurred by any person, even if advised of the possibility of such damages or such claims.
Disclaimer of intellectual property infringement. CATAPULT does not independently verify the true owner of any information or content on the Catapult EMS site which is supplied by the users or contributors, and in no event shall CATAPULT be liable, whether in contract, tort or otherwise, for any misuse or infringement by any user of the intellectual property of another party. CATAPULT will reasonably cooperate with any valid claims of infringement by removing the infringing content from the Catapult EMS site but shall not be obligated or subject to damages in any way.
Indemnity. User, and each of them, hereby agrees to indemnify and hold CATAPULT (and any employee, officer, director or affiliate of CATAPULT, each a “Company Person”) harmless (including costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of User’s access to or use of the System; User’s violation of these Terms; the infringement by User, or any third party using User’s account, of any intellectual property or other right of any person or entity; or for any content posted through the Service by User (including claims related to defamation, invasion of privacy, or other violation of a person’s or Non-profit’s rights). User’s obligations under the foregoing indemnity may not be offset against any other claim User may have against CATAPULT or any Company Person. User remains solely responsible for all Content that User uploads, posts, emails, transmits, or otherwise disseminates using, or in connection with, any Service. User agrees that the provisions in this paragraph will survive any termination of User’s account(s) or the Services. In addition, User hereby releases any claims User may have against CATAPULT that are in any way related to the Services or User’s use of Content offered through the Services. User is solely responsible for User’s use of the Services, for any Content User provides, and for any consequences thereof, including the use of User’s Content by other Users and third party partners.
Use of Services by CATAPULT. User understands that CATAPULT’s employees and/or its affiliates, agents, parents or others may participate in and use the System and that CATAPULT is not responsible for any of their activities, including statements or other information in any emails or other communications such individuals make in that capacity.
SECTION 8: COPYRIGHT POLICY
Introduction. CATAPULT respects the intellectual property rights of others and expects Users of the System to do the same. CATAPULT will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If User believes that User’s copyrighted work has been copied without User’s authorization and is available on or in the System in a way that may constitute copyright infringement, User may provide notice of User’s claim to CATAPULT as outlined in the CATAPULT copyright policy.
Copyright Policy. If any User or person believes that any material on the System violates this agreement or User’s intellectual property rights, that person should notify CATAPULT as soon as possible by sending an email to CATAPULT with information supporting the belief of infringement, and in accordance with the Digital Millennium Copyright Act: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) 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 us to locate the material; (iv) User’s contact information, including User’s address, telephone number, and an email address; (v) a statement by User that User 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; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that User is authorized to act on behalf of the copyright owner. CATAPULT reserves the right to remove Content alleged to be infringing or otherwise illegal without prior notice and at our sole discretion. In appropriate circumstances, CATAPULT will also terminate a User Account if the User is determined to be a repeat infringer.
SECTION 9: TERM
Acceptance & Term. These Terms shall take effect upon acceptance by the User pursuant to the on-line registration process and shall remain effective until terminated pursuant to this Section 8.
Termination. These Terms may be terminated by CATAPULT delivering written notice to User at the email address provided during registration, deleting all Content and information from the User Account. All provisions of the Terms that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability. Except for Private Users under an ALS Agreement, any User may terminate their agreement and these Terms at any time by giving notice to CATAPULT, subject to any on-going obligations provided herein to maintain confidentiality and as provided herein, by following the self-guided instructions on the System and by ceasing to use the System.
SECTION 10. OTHER SITES
The Service may permit Users to link to other websites or resources on the internet, and other websites or resources may contain links to the Site. When Users access third-party websites, they do so at their own risk. Those other websites are not under the control of CATAPULT, and every User acknowledges that CATAPULT is not liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of those other websites or resources. The inclusion on another website of any link does not imply endorsement by or affiliation with CATAPULT. Client further acknowledges and agrees that CATAPULT shall not be liable for any damage related to the use of any content, goods, or services available through any third-party website or resource.
SECTION 11. NO SPECIAL DUTY
CATAPULT has no special relationship with or fiduciary duty to any User. Each User acknowledges that CATAPULT has no duty to take any action on behalf of a User except as expressly stated herein. CATAPULT cannot guarantee the authenticity of any data or information that Users provide to the Site. User releases CATAPULT from all liability for user’s having acquired or not acquired Content through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. The Company makes no representations concerning any Content on the Site, and the Company is not liable for the accuracy, copyright compliance, legality, or decency of material contained on the System.
SECTION 12. DISCLAIMER UNDER ECPAN
Electronic Communications Privacy Act Notice (18 USC §2701-2711): The Company makes no guarantee of confidentiality or privacy of any communication or information transmitted on the Catapult EMS site or any website linked to the Catapult EMS site. The Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on the Company’s equipment, transmitted over networks accessed by the Catapult EMS Site, or otherwise connected with client’s use of the Service.
SECTION 13. FOREIGN ACTIVITIES
Accessing the Service is prohibited from, to, with or through territories where the Content is illegal. If User accesses the Service from other locations, it is done at User’s own risk and User is solely responsible for compliance with local and host country laws.
SECTION 14: ARBITRATION, GOVERNING LAW
Election of Arbitration. Any dispute, claim, or controversy arising out of or relating to a breach of these terms and conditions, or termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Fresno County, California metropolitan area before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Applicable Law. The Terms and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the foregoing with respect to applicable substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
No Class Actions. No class actions or similar process, and no joinder or consolidation of any claim with a claim of any other person or entity, shall be allowable in arbitration, without the written consent of all of the Users involved, and CATAPULT. The arbitrator shall have no authority to entertain any claim on behalf of a class, group, person, or entity who is not a named party to the arbitration, nor shall any arbitrator have authority to make any award for the benefit of, or against, any class, group, person, or entity who is not a named party to the arbitration. In the event that there is a dispute about whether limiting arbitration to non-class proceedings, or to the named parties, is enforceable under applicable law, then that question shall be resolved by a court rather than by an arbitrator; and to the extent it is determined that resolution of a claim must proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration.
Arbitration Binding. Arbitration with respect to a claim is binding and neither user nor CATAPULT will have the right to litigate that claim through a court. In arbitration, user and CATAPULT will not have the same rights that apply in court, such as the right to a trial by judge and jury and the right to participate or be represented in proceedings. In addition, the right to discovery and the right to appeal may also be limited or eliminated in arbitration. User and CATAPULT acknowledge and accept all such limitations.
SECTION 15: MISCELLANEOUS
These Terms constitute the complete and exclusive understanding between CATAPULT and the Users and supersede any prior versions, either written or oral; except for any ALS Agreement which shall supplant any conflicting terms herein, but otherwise be deemed to also apply to all Private Users. If either CATAPULT or User fails to exercise any rights hereunder, it shall not constitute a waiver of such rights. The waiver of any breach or default under these Terms shall not constitute the waiver of any subsequent breach or default. If any provision of these Terms is determined to be invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable. Headings and organization of the Terms & Conditions are solely for convenience of the parties and do not constitute a part of the Terms for any other purpose. CATAPULT shall not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond CATAPULT’s reasonable control. Any assignment of these Terms by any User, without the prior written consent of CATAPULT, shall be null and void and of no effect and constitute a material breach of these Terms. Any notice provided pursuant to these Terms shall be in writing and delivered by email to [email protected] for CATAPULT or the email address provided during registration for User. These Terms may be amended by CATAPULT at any time upon by providing notice to User of such amendment, where such notice shall be in the form of posting the revised Terms on the CATAPULT website. Continued use of the Services fifteen (15) days after such notice shall be deemed to be acceptance of any such amendment. These Terms and other referenced material (like the ALS Agreement) are the entire agreement between the Users and CATAPULT with respect to the Service and use of the System and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic). The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
UPDATED: February 1, 2020
CatapultEMS is your full emergency management system designed to be proactive before, during and after emergencies.