CollegeSpring Terms of Service
Last Updated: April 20, 2023
Welcome, and thank you for your interest in CollegeSpring, Inc. (“CollegeSpring,” “we,” “us,” and “our”) and our website, along with our related websites, hosted applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and CollegeSpring regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
Arbitration NOTICE. Except for certain kinds of disputes described in Section 16 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND COLLEGESPRING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
THIRD PARTY SOFTWARE INTEGRATION NOTICE. You understand and agree that to use the service you also agree to the terms and conditions set forth in the agilix LABS, INC. (“Agilix”) END USER LICENSE AGREEMENT as described in Section 17.4.
1. CollegeSpring Service Overview. These Terms provide information about CollegeSpring’s test preparation program and classroom curriculum. “Teachers” use the Service as an instructional aid for members of their classroom (“Students”). CollegeSpring registers Students based on a roster provided by their Teacher shared with CollegeSpring. Students can interact with the Service by accessing the curriculum, practice tests, practice problems, participating in interactive games, and otherwise engaging with CollegeSpring content or the User Content uploaded by Teachers.
2. Eligibility. The term “user” and “you” used throughout these Terms refers to both Teachers and Students using the Service. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, non-profit, school, school district, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. After receiving a confirmatory roster from your school, school district, or other organization as applicable, CollegeSpring will enroll you in the appropriate classroom and provide you with log-in credentials, including an initial password, and a URL to access the Service. After logging in the first time, you may change your log-in password. You are solely responsible for maintaining the confidentiality of your password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at [email protected].
4.1 Limited License. Subject to your complete and ongoing compliance with these Terms, CollegeSpring grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
4.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
4.3 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant CollegeSpring an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
5. Ownership; Proprietary Rights. The Service is owned and operated by CollegeSpring. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by CollegeSpring (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of CollegeSpring or its third-party licensors. Except as expressly authorized by CollegeSpring, you may not make use of the Materials. There are no implied licenses in these Terms and CollegeSpring reserves all rights to the Materials not granted expressly in these Terms.
6. Third-Party Terms
6.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
7. User Content
7.1 User Content Generally. Certain features of the Service may permit you to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including powerpoints, lesson supplements, and other supportive curriculum resources, messages, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
7.2 Limited License Grant to CollegeSpring and Students.
By Posting User Content to or via the Service, you:
(a) grant CollegeSpring a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed; and
(b) grant Students a worldwide, non-exclusive, royalty-free, fully paid right a license to access, use, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, and create derivative works of your User Content as authorized in these Terms.
All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted or otherwise used on external services via the Service. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from CollegeSpring’s and Student’s exercise of the licenses set forth in this Section.
7.3 Specific Rules for Photographs and Images. If you Post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, but not to promote any third-party product, good, or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
7.4 You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content, including in all ambient music and underlying musical works embodied in any sound recording. CollegeSpring disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize CollegeSpring to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by CollegeSpring, the Service, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause CollegeSpring to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
7.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. CollegeSpring may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against CollegeSpring with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, CollegeSpring does not permit infringing activities on the Service.
8.1 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
9. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
9.1 print any portion of the Service, including any Materials or User Content, without prior written consent by CollegeSpring, unless CollegeSpring has provided prior written consent for certain Students with a printing accommodation as part of the Student’s individualized education program;
9.2 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
9.3 harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
9.4 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
9.5 access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by CollegeSpring;
9.6 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
9.7 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
9.8 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission;
9.9 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
9.10 attempt to do any of the acts described in this Section 9 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 9 (Prohibited Conduct).
10. Intellectual Property Rights Protection
10.1 Respect of Third-Party Rights. CollegeSpring respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
10.2 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
Attn: Legal Department (IP Notification)
1990 N California Blvd, Suite 20
Walnut Creek, CA 94596
Email: [email protected]
10.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property right that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by CollegeSpring with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to CollegeSpring making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
10.4 Repeat Infringers. CollegeSpring’s policy is to: (a) remove or disable access to material that CollegeSpring believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. CollegeSpring will terminate the accounts of users that are determined by CollegeSpring to be repeat infringers. CollegeSpring reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
10.5 Counter Notification. If you receive a notification from CollegeSpring that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide CollegeSpring with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to CollegeSpring’s Designated Agent through one of the methods identified in Section 10.2 (DMCA Notification), and include substantially the following information:
(a) your 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; and
(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 the address is located, or if you are residing outside of the United States, then for any judicial district in which CollegeSpring may be found, and that you will accept service of process from the person who provided notification under Section 10.2 (DMCA Notification) above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
10.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to CollegeSpring in response to a Notification of Claimed Infringement, then CollegeSpring will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that CollegeSpring will replace the removed User Content or cease disabling access to it in 10 business days, and CollegeSpring will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless CollegeSpring’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on CollegeSpring’s system or network.
10.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under Section 512 of the Copyright Act (17 U.S.C. § 512) (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of CollegeSpring relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” CollegeSpring reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
11. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 11 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
12. Term, Termination, and Modification of the Service
12.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2 (Termination).
12.2 Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, CollegeSpring may, in its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, (including if CollegeSpring is notified that a Student has dropped a course or been removed from a classroom), with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at [email protected].
12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; and (c) Sections 4.3 (Feedback), 5 (Ownership; Proprietary Rights), 7 (User Content), 12.3 (Effect of Termination), 13 (Indemnity), 14 (Disclaimers; No Warranties by CollegeSpring), 15 (Limitation of Liability), 16 (Dispute Resolution and Arbitration), and 17 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from requesting a new account on the Service using a different name, email address or other forms of account verification.
12.4 Modification of the Service. CollegeSpring reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. CollegeSpring will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify CollegeSpring, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “CollegeSpring Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties by CollegeSpring
14.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COLLEGESPRING DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COLLEGESPRING DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COLLEGESPRING DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
14.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR COLLEGESPRING ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE COLLEGESPRING ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
14.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 14 (Disclaimers; No Warranties by COLLEGESPRING) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. COLLEGESPRING DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT COLLEGESPRING IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
15. Limitation of Liability
15.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COLLEGESPRING ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY COLLEGESPRING ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
15.2 EXCEPT AS PROVIDED IN SECTIONS 16.5 (Commencing Arbitration) AND 16.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COLLEGESPRING ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO COLLEGESPRING FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
15.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. Except as described in Section 16.2 (Exceptions) and 16.3 (Opt-Out), you and CollegeSpring agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COLLEGESPRING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to CollegeSpring, Inc., Attention: Legal Department – Arbitration Opt-Out, 1990 N California Blvd, Suite 20, Walnut Creek, CA 94596 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once CollegeSpring receives your Opt-Out Notice, this Section 16 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
16.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting CollegeSpring.
16.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). CollegeSpring’s address for Notice is: CollegeSpring, Inc., 1990 N California Blvd, Suite 20, Walnut Creek, CA 94596. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or CollegeSpring may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, CollegeSpring will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if CollegeSpring has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
16.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or CollegeSpring must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
16.7 Arbitration Relief. Except as provided in Section 16.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by CollegeSpring before an arbitrator was selected, CollegeSpring will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
16.8 No Class Actions. YOU AND COLLEGESPRING AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CollegeSpring agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.9 Modifications to this Arbitration Provision. If CollegeSpring makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to CollegeSpring’s address for Notice of Arbitration, in which case your account with CollegeSpring will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.10 Enforceability. If Section 16.8 (No Class Actions) or the entirety of this Section 16 (Dispute Resolution and Arbitration) is found to be unenforceable, or if CollegeSpring receives an Opt-Out Notice from you, then the entirety of this Section 16 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 (Governing Law) will govern any action arising out of or related to these Terms.
17.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and CollegeSpring submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California, for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
17.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), including the Agilix End User License Agreement which may be updated from time to time; the latest version of which is attached below as the Agilix Addendum. All Additional Terms are incorporated by this reference into, and made a part of, these Terms. We will notify you of any material modifications to the Agilix Addendum in accordance with Section 11 (Modification of Terms).
17.6 Contact Information. The Service is offered by CollegeSpring, Inc., located at 1990 N California Blvd, Suite 20, Walnut Creek, CA 94596. You may contact us by sending correspondence to that address or by emailing us at [email protected].
17.7 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
17.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
17.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
IMPORTANT! If you are not of legal age to form a binding contract (in many places, this is 18 years old), then you must get your parent or guardian to read these terms and agree to them for you, before you use Buzz or provide any information to us. Please review this agreement with your parent or guardian so that you both understand how Buzz works and what restrictions apply to your use of our websites and services. Remember, always get an adult’s permission before going online.
- DEFINITIONS. By “Buzz” we mean the features and services we make available, including through (a) our website at www.agilixbuzz.com (b) our Platform; and (c) other media, devices or networks now existing or later developed.
By “Us,” “We” and “Our” we mean Agilix Labs, Inc, and/or its affiliates.
By “You” we mean the user of Buzz.
By “Platform” we mean a set of APIs and services that enable applications, developers, operators or services to retrieve data from Buzz and provide data to us relating to Buzz users.
By “Content” we mean the content and information you post on Buzz, including information about you and the actions you take.
By “Post” we mean post on Buzz or otherwise make available on the Platform.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they collect personally identifiable information online from children who are under 13. Therefore, we only collect personal information through Buzz from a child under 13 where that student’s school, district, and/or teacher has agreed (via the terms described in the following paragraph) to obtain parental consent for that child to use Buzz and disclose personal information to us, for the use and benefit of the learning environment. If you are a student under 13, please do not send any personal information about yourself to us if your school, district, and/or teacher has not obtained this prior consent from your parent or guardian, and please do not send any personal information other than what we request from you in connection with Buzz. If we learn we have collected personal information from a student under 13 without parental consent being obtained by his or her school, district, and/or teacher, or if we learn a student under 13 has provided us personal information beyond what we request from him or her, we will delete that information as quickly as possible. If you believe that a student under 13 may have provided us personal information in violation of this paragraph, please contact us at [email protected].
- LICENSE GRANT. We hereby grant You a non-exclusive, nontransferable, nonsublicensable license to use Buzz solely in accordance with these Terms. Buzz incorporates various intellectual property rights, that may include, without limitation, copyrights, trademarks, patents, trade secrets and other proprietary rights (collectively, the “Intellectual Property Rights”). While You have been given access to Buzz, We retains all rights, title and interests in and to Buzz and all Intellectual Property Rights embodied therein.
- RIGHTS AND RESTRICTIONS. Buzz is protected by U.S. and foreign copyright laws and international copyright treaties, as well as by other such intellectual property laws and treaties. Buzz is licensed (and not sold) to You, and any and all rights not expressly granted to You herein are reserved by Us and You shall not remove, alter or obscure any product identification, trademark or other notices or legends contained in or on Buzz.
- REVERSE ENGINEERING. You shall not, nor permit anyone else to, directly or indirectly, adapt or otherwise modify, create any derivative work, or decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code from, Buzz (or any portion thereof).
- SHARING YOUR CONTENT AND INFORMATION
You retain ownership of all of your Content and information you Post on Buzz. In order for Us to use certain types of Content and provide you with Buzz, You agree to the following:
For Content that is covered by intellectual property rights, like photos and videos (“IP content”), You specifically give Us the following permission: You grant Us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you Post on or in connection with Buzz (“IP License”). This IP License ends when you delete your IP content or your account (except to the extent your content has been shared with others, and they have not deleted it). Without this license, we would not be able to display your Content to your students (if you are a teacher) or your teachers (if you are a student).
When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, You understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
We appreciate feedback or other suggestions to help us improve Buzz. While you are not required to offer feedback or suggestions, You understand that if you do then We may use your feedback and suggestions without any obligation to compensate you for it (just as you have no obligation to offer it).
- SAFETY. We do our best to keep Buzz safe, but we cannot guarantee it. We need your help in order to do that, which includes the following commitments:
- You will not send or otherwise post unauthorized commercial communications to users (such as spam).
- You will not collect users’ information, or otherwise access Buzz, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.
- You will not upload viruses or other malicious code.
- You will not solicit login information or access an account belonging to someone else.
- You will not bully, intimidate, or harass any user.
- You will not post content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence.
- You will not use Buzz to do anything unlawful, misleading, malicious, or discriminatory.
- You will not facilitate or encourage any violations of these Terms.
- REGISTRATION AND ACCOUNT SECURITY. Buzz users provide their real names and information, and we need your help to keep it that way. Here are some commitments You make to Us relating to registering and maintaining the security of your account:
- You will not provide any false personal information on Buzz, or create an account for anyone other than yourself without permission.
- You will keep your contact information accurate and up-to-date.
- You will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.
- You will not transfer your account to anyone for any reason.
- PROTECTING OTHER PEOPLE’S RIGHTS. We respect other people’s rights, and expect You to do the same:
- You will not Post Content or take any action on Buzz that infringes someone else’s rights or otherwise violates the law.
DOMAINS AND SUBDOMAINS. Buzz includes a feature that allows administrators to create subdomains in Buzz. Should that feature be available to You, You agree that You will not create, nor permit to be created, any Buzz subdomains based on the copyrighted or trademarked works of anyone else. We reserve the right to remove any subdomains created by You in Buzz that infringe on the copyrights, trademarks, or other intellectual property rights of others.
You agree that any subdomains You create will include Your Buzz domain name. For example, if Your domain name in Buzz were abccompany (abccompany.agilixbuzz.com), and you wanted to create a subdomain for training, the subdomain You create would be like abccompanytraining (abccompanytraining.Agilixbuzz.com), or trainingabccompany (trainingabccompany.Agilixbuzz.com) or the like, but NOT training (training.Agilixbuzz.com).
We reserve the right to remove any subdomains that violate these terms.
- We can remove any Content you Post on Buzz if we believe that it violates these Terms.
- If You repeatedly infringe other people’s intellectual property rights, We will disable your account when appropriate.
- You will not use Our copyrights or trademarks without Our written permission.
- You will not Post anyone’s identification documents or sensitive financial information on Buzz.
DMCA Takedown Policy
You may have heard of the Digital Millennium Copyright Act (“DMCA”), as it relates to online service providers like Agilix being asked to remove material that allegedly violates someone’s copyright. You can learn more about the DMCA at http://www.copyright.gov/legislation/dmca.pdf. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; you can review our complete Copyright Dispute Policy and learn how to report potentially infringing content at http://agilix.com/copyright-policy or at such URL as Agilix shall time to time designate.
- 14. GOVERNING LAW. These Terms shall be governed by and construed under the laws of the State of Utah, excluding that body of law related to choice of laws, and of the United States of America. Nothing in these Terms shall prevent Us from complying with the law.15. DISPUTES. You will resolve any claim, cause of action or dispute (“claim”) you have with Us arising out of or relating to these Terms or Agilix Labs, Inc. in a state or federal court located in Utah. The laws of the State of Utah will govern these Terms, as well as any claim that might arise between You and Us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Utah for the purpose of litigating all such claims.
If anyone brings a claim against Us related to Your actions or your Content on Buzz, You will indemnify and hold Us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
- NO WARRANTIES. WE TRY TO KEEP BUZZ UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. WE ARE PROVIDING BUZZ “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT BUZZ WILL BE SAFE OR SECURE. AGILIX LABS, INC. IS NOT RESPONSIBLE FOR THE ACTIONS OR CONTENT OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
- LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR BUZZ, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OR BUZZ WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You will not transfer any of your rights or obligations under these Terms to anyone else without Our consent.
These Terms do not confer any third party beneficiary rights.
All of our rights and obligations under these Terms are freely assignable by Us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
- WAIVER. No failure or delay by Us in exercising any right, power or remedy under these Terms shall operate as a waiver of any such right, power or remedy, unless expressly indicated by Us in a signed writing.
- ENTIRE AGREEMENT. These Terms constitute the entire agreement between You and Us regarding the acceptable use of Buzz and accompanying rights and obligations. The headings of the sections and subsections of these Terms are for convenience of reference only and shall not be of any effect in construing the meanings of any provision hereof. If any provision of these Terms (or part thereof) is determined by a court of competent jurisdiction to be void, invalid or otherwise unenforceable, such provision (or part thereof) shall be deemed deleted from these Terms, while the remaining provisions of these Terms shall continue in full force and effect.
BY ACCESSING AND USING BUZZ, YOU ARE PROVIDING A SYMBOL OF YOUR LEGAL SIGNATURE AND ACKNOWLEDGING AND ACCEPTING ALL OF THE PROVISIONS OF THESE TERMS. You represent and warrant that you are of legal age to form a binding contract (or if not, you have received your parent’s or guardian’s permission to use Buzz and gotten your parent or guardian to agree to these Terms on your behalf). If you are agreeing to these Terms on behalf of an organization or entity (for example, if you are an administrator agreeing to these Terms on behalf of your district), you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms.