Effective Date: January 29, 2024.
Types of Users
These Terms may apply to you individually (“Personal User”), the business or other legal entity user you represent (“Entity User”), or both. Personal Users include Customer Users and Public Users. “Customer User” means those employees, agents, contractors, personnel and other representatives of an Entity User using the Services on Entity User’s behalf. “Public User” means parents or other representatives of students enrolled with an Entity User. For clarity, an Entity User is responsible for its Customer Users (and all acts and omissions of Customer Users shall constitute acts or omissions of the corresponding Entity User), but not Public Users, provided that Entity Users shall: (i) be responsible for providing end user support to its Public Users’ use of the Services, and Provider has no obligation to provide such support; (ii) use reasonable efforts to require that any Public User acknowledge and agree to these terms prior to being permitted access to and use of the Services; and (iii) upon becoming aware of any misuse of the Services by any Public User, or other non-compliance with the provisions of these Terms by any Public User, to the extent that Entity User has control over access by the Public User, terminate access to and use of the Services by any offending Public User.
Entering into an Agreement
If you are using the Site or Services on behalf of a company, school, school district or other legal entity (i.e. an Entity User), you hereby represent and warrant that you have the authority to enter into these Terms on behalf of the Entity User. Notwithstanding the foregoing, these Terms shall not apply to any Entity User that has an existing agreement with us to the extent such other agreement governs such Entity User’s use of the applicable Services. However, if an Entity User has a separate agreement with us for certain Services but not other Services, these Terms shall govern such other Services that are not already governed by an agreement with Provider. Additionally, if you are a natural person using the Site or Services on behalf of a company, school, school district or other legal entity, you (as a Customer User) are nevertheless individually bound by these Terms even if your company, school, school district or other entity has a separate agreement with us. As used in these Terms and unless separately identified as applicable to either a Personal User or Entity User only, “you” and “your” refer to both you individually (Personal User) and, to the extent these Terms apply, the Entity User on behalf of which you are entering into these Terms.
By accessing the Site, registering for or using the Services, or otherwise agreeing to these Terms, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us.
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the Site. As your next visit to a Site or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Site or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account. Your use or continued use of the Site or Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.
2.1 Eligibility; Responsibility. You may not access or use the Site or Services if you are unable to form a binding, legal agreement with Provider. You affirm that you have the authority to enter into these Terms. You assume all responsibility for your use of, and access to, the Site or Services. Accounts are for a single user, company or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of Entity User, is prohibited. For example, sharing a login between Personal Users and other individuals is prohibited.
2.2 License Grant. Subject to your compliance with these Terms, Provider grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Site and Services over the Internet to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof.
2.3 Restrictions. The foregoing license is personal to you, and you may not resell our Services, permit other users access to our Services through your account (provided that Entity Users may provide access to their Customer Users), or use the Services to host content for others. You may not copy or download any content from the Site or Services except with the prior written approval of Provider. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and Provider. Furthermore, without the prior written approval of Provider, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Site content or Services. Any commercial use of the Site or Services not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Site or Services.
2.4 Rights Reserved; Ownership. The Site and Services provided by Provider are licensed, not sold. The Site and Services, and all copies of the Site and Services, are owned by Provider or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright and trade secret laws. Provider reserves all rights not expressly granted to you herein. You agree that you have no right to any Provider trademark or service mark and may not use any such mark in any way unless expressly authorized by Provider.
2.5 Support. Provider may offer support and maintenance services to Entity Users (and their Customer Users) in connection with the Services. In such event, the number of Customer Users authorized to contact and interface with Provider’s support services shall be limited as reasonably determined by Provider. Entity Users and their Customer Users, and not Provider, shall be solely responsible for providing support to their Public Users.
2.6 Changes. Provider may also at any time modify or discontinue, temporarily or permanently, all or any part of the Site, Services or your account, with or without notice, and you agree that Provider will not be liable to you or any third party for any such modification, suspension or discontinuance.
3. Your Content
3.2 Your Responsibility. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Content to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights). Provider may also remove or delete your Content from the Site or Services at any time in its sole discretion.
3.3 Personal Information. The Services may contain designated forms for the collection and storage of some personal information. However, you shall not use the Services to collect or store bank card and account numbers or individual identification numbers issued by government agencies and financial institutions within the Services.
3.4 Content Disclaimer. Provider is not liable for the loss, corruption, alteration or removal of any content transmitted using our Site or Services. By using our Services, you expressly waive the right to seek damages and agree to hold Provider harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Site or Services. PROVIDER EXPRESSLY DISCLAIMS AND ASSUMES NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS ARISING OUT OF OR OTHERWISE RELATING TO THE USE OF ANY CONTENT TRANSMITTED OR STORED THROUGH THE SERVICES.
3.5 Feedback. You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Site, Services or otherwise relating to Provider (“Feedback”) to Provider. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Provider shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from Provider under any circumstances relating to such Feedback.
4. Professional Services
4.1 General. Provider may agree to provide consulting, customization, configuration, integration, development or other professional services (“Professional Services”) from time to time pursuant to a statement of work or other Order between Provider and Entity User.
4.2 Rights. Unless otherwise expressly agreed in writing, Provider shall retain all right, title and interest in all deliverables and work product arising out of the Professional Services, and Entity User shall be entitled to use such deliverables and work products made available to it as part of the Services in accordance with the terms applicable to the Services herein. Professional Services shall constitute “Services” under these Terms.
4.3 Your Responsibilities. If you receive Professional Services, you shall: (a) cooperate with Provider in all matters relating to the Professional Services; (b) if requested by Provider, appoint an employee or other representative to serve as the primary contact with respect to such Professional Services; (c) provide such access to your premises, facilities, and computer systems and networks as may reasonably be requested by Provider for the purposes of performing the Professional Services; (d) respond promptly to any Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Provider to perform the Professional Services; (e) provide such information or materials as Provider may reasonably request in order to carry out the Professional Services, in a timely manner, and (f) ensure that such information is complete and accurate in all material respects.
4.4 Delay in Performance. If Provider’s performance of Professional Services is prevented or delayed by any act or omission by you or your agents, subcontractors, consultants or employees, Provider shall not be deemed in breach of its obligations or otherwise liable for any costs, charges or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay, and Provider’s obligation to perform will be extended by the same number of days as your contingent action is delayed.
5. Data Source Integrations
The Services may enable integrations with third-party data sources from time to time, including with certain third-party student information systems (“SIS”). Such integrations may also arise out of Professional Services provided by Provider to you. Notwithstanding the foregoing, you acknowledge and agree that Provider is unable to control whether or not you are able to effectively integrate your SIS data into or with our Services. While we may offer basic support and guidance from time to time in connection with such integrations (or Professional Services relating to such integration(s)), Provider shall in no event be responsible for, and you hold Provider harmless from, all such integrations and any failure or other issues regarding such integrations and related third parties. Without limiting the foregoing, you are solely responsible for obtaining applicable sandbox environments, support and other changes for your SIS or other data sources. Additionally, in no event may any failure or other issue with an integration serve as a basis for you terminating your relationship with Provider or withholding any amounts due to Provider.
6. Term & Termination
6.1 Entity User Term. With respect to Entity Users, unless otherwise set forth in the applicable Order, the initial term for any Services purchase shall be three (3) years. After the initial term, these Terms and the corresponding subscription for the applicable Services shall automatically renew for additional, consecutive one (1) year renewal terms unless either party provides at least 30 days’ advance written notice of its intent not to renew or these Terms are otherwise terminated earlier in accordance with these Terms.
6.2 Entity User Termination; Suspension. Either Entity User or Provider may terminate these Terms if the other party: (a) commits a material breach of these Terms and such breach remains uncured 30 days after written notice of such breach is delivered to such other party; or (b) makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws. Additionally, Provider may immediately suspend, deny or restrict an Entity User’s access to all or part of the Site or Services without notice in its reasonable discretion if it deems that such Entity User or its Customer Users have engaged in any conduct or activities that Provider in its reasonable discretion believes violates these Terms.
6.3 Personal User Term & Termination. With respect to Personal Users, these Terms shall continue in effect for so long as such Personal User continues to use the Site or Services, unless otherwise earlier terminated by Provider. Personal Users can terminate these Terms by ceasing use and access of the Services and deleting their account. With respect to Personal Users, Provider may terminate these Terms and/or suspend, deny or restrict your access to all or part of the Site or Services without notice for any reason, including without limitation if it deems that you have engaged in any conduct or activities that Provider in its reasonable discretion believes violates these Terms.
6.4 Effect of Termination. In the event that these Terms or the Services are terminated, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Site and Services and any license granted to you under any agreement related to your use of the Site or Services shall immediately terminate. Termination of these Terms or the Services does not relieve you from your obligation to pay Provider any amounts owed to Provider and you are not entitled to any refund of any amounts paid. Upon termination, Provider may, in its sole discretion, store your Content on its servers for a reasonable period of time or longer pursuant to its rights under these Terms, but we do not guarantee that your Content will still be available upon re-activation at a later time. Notwithstanding the foregoing, Provider reserves the right to delete all of your Content, data, and other information stored on Provider’s servers. Provider will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by Provider pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, Provider will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Site or Services, or the termination thereof.
7. Fees; Payment Terms.
7.1 Fees. You shall pay all fees owed to Provider pursuant to an Order or as otherwise agreed upon from time to time. Fees are due regardless of your use of the Services or lack thereof. Fees are primarily applicable to Entity Users, so this Section shall not apply to Personal Users unless such Personal Users otherwise have agreed to pay Provider applicable fees.
7.2 Payment Terms. Unless otherwise set forth in an Order, (a) all recurring (e.g. subscription) fees shall be payable annually in advance, and (b) all other amounts due shall be paid by you within 30 days of the date of such invoice. All payment obligations are non-cancelable and payments are non-refundable. You are responsible for promptly providing complete and accurate billing and contact information, including changes to such information. You also agree that Provider and its third-party service providers providing payment processing services may store your payment information. We may charge your payment information for subsequent charges you authorize, such as account upgrades or other special charges authorized by you. If the payment method you use with us reaches its expiration date and you do not edit the applicable information, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts.
7.3 Taxes. Unless invoiced and collected by Provider by legal obligation, you are responsible for the payment of all applicable local, state, and federal taxes arising in connection with this Agreement; including but not limited to all privilege, value-add, use, and/or sales taxes.
7.4 Fee Increases. Provider reserves the right to increase fees for any renewal term by providing at least 60 days’ advance written notice to you prior to the expiration of the then-current term.
7.5 Late Payment. In the event you fail to timely pay any fees when due, late interest at the rate of 1.5% per month, compounding monthly, or the maximum rate permitted by law, whichever is lower, will accrue on any outstanding balance. If the fees are thirty (30) days or more past due, Provider may accelerate your obligations to become immediately due and payable and suspend Services until paid in full. Notwithstanding anything to the contrary herein, Provider shall have the right to pursue any and all rights and remedies available to it pursuant to these Terms and under applicable law.
7.6 Free Trial. Provider may make available Services on a trial basis, free of charge, from time to time, provided that: (a) Provider may terminate any such trial at any time at its sole discretion, and (b) any Content or other data or information generated during the trial period may be permanently deleted unless you purchase a subscription prior to the end of the trial term.
8. Your Account
Except for your Content licensed to us as set forth above, the account you create and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
9. Interactions with Other Users
You are solely responsible for all interactions with other users. You acknowledge and agree that we do not verify any Content or other information provided by users on the Site or Services. Provider offers various forums which allow you to post comments (e.g. chat rooms, blogs, message boards, and bulletin boards). Pursuant to the license granted by you above, Provider may grant other users of the Site or Services access and share rights to your Content in accordance with these Terms, your settings and the nature of your connection with such other users. Information you share may be seen and used by other users of the Site or Services. Provider cannot guarantee that users of the Site or Services will not use the information that you share, nor the manner of use. Provider is not responsible for another user’s or other third party’s misappropriation or misuse of your Content or other information. Additionally, Provider is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party. You hereby release Provider from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Site or Service, or (ii) any dispute between you and another user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Site or Services.
10. Third-Party Applications, Content & Sites
10.1 Third-Party Materials. In connection with the Services, Provider may make available certain third-party software applications, services, information or other materials (“TP Materials”), including TP Materials that interoperate with the Services. Your use of TP Materials may be governed by the terms and conditions of an end user license agreement (“TP EULA”) between you and the provider of such TP Material (“TP Provider”). The TP Provider has the right to enforce the TP EULA against you. If you do not want to comply with the TP EULA for a TP Material, you must not use that TP Material. Provider is not a party to the TP EULA for any TP Material. Provider is not responsible for any transmission, collection, disclosure, modification, use or deletion of your data by or through TP Materials or their TP Providers. The third-party content included in the TP Materials is the sole responsibility of the TP Provider of that content. Provider is not responsible for any third-party content, whether or not it reviewed or moderated such content. You agree that you bear all risks associated with using or relying on TP Materials. Provider does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any TP Materials (including without limitation any applications or content contained therein), regardless of who originated that content.
11. Acceptable Use Policy
You agree to comply with all applicable laws and regulations in connection with your use of the Site and Services. You may not use our Site or Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
Provider enforces a zero-tolerance SPAM policy regarding information transmitted through our network. Provider may determine in its sole discretion whether any transmissions are considered SPAM. SPAM includes, but is not limited to, the following:
If Provider determines that you have posted one or more articles of SPAM, we may cancel your account immediately and take steps to prevent you from using our network at any time thereafter.
12. Copyright Protected Materials
Provider respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Site or Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. Provider has the right, but not the obligation, to remove from the Site and Services any files, material, information, software or other material Provider believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.
If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: [INSERT].
The Services and all non-public documents, data, information, and other materials disclosed or made available by us to you in connection with the Services are confidential (collectively, the “Confidential Information”). You may not use the Confidential Information for any purpose other than fulfilling your obligations and exercising your rights under these Terms. You may not disclose the Confidential Information to any third party without our prior written consent, except that you may make disclosures to the extent required by a court order or as otherwise required by law. If you are required by law or similar process to disclose any Confidential Information, you will provide us with prompt prior written notice of such request or requirement so that we may seek an appropriate protective order and/or waive compliance with this Section. Upon our request or termination of these Terms for any reason, you will return to us all Confidential Information, together with any copies of the same, or destroy the Confidential Information and certify to us its destruction. The requirements of confidentiality set forth herein will survive the return of such Confidential Information. You acknowledge that damages for improper disclosure of Confidential Information may be irreparable; therefore, we are entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section.
15. Disclaimer of Warranty
Actual service coverage, speeds, locations and quality may vary. Provider will attempt to provide the Services continuously, except for limited periods for maintenance and repair. However, the Services and Site may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Site, Services, or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users, the Services or the Site. The accuracy and timeliness of data received is not guaranteed.
YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. THE SITE, ALL SITE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. PROVIDER DOES NOT WARRANT THAT THE SITE OR SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. PROVIDER DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR SERVICE, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, PROVIDER’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
16. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL PROVIDER, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“PROVIDER PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR OUR SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SITE AND SERVICES.
A PROVIDER PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID PROVIDER FOR YOUR USE OF THE SERVICES IN THE PRIOR SIX (6) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE PROVIDER PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PROVIDER TO YOU AND 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 AND THE PRIOR SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
18. Export Control Laws
The Services may be subject to export control restrictions of the United States, Canada or other jurisdictions. By using the Services, you represent and warrant that (i) you are not located in any country, or exporting the Service to any person or place, to which the United States, Canada, or any other jurisdiction has embargoed goods or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Services any content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of these Terms.
19. General Terms
19.1. Entire Agreement. These Terms and corresponding Order(s), along with any other terms reference therein, constitute the entire agreement between Provider and you with respect to your use of our Site or Services. If there is any conflict between the Terms and any other rules or instructions posted on the Site or Services, the Terms shall control.
19.2. Amendments. No amendment to these Terms by you by shall be effective unless acknowledged in writing by Provider. Notwithstanding the foregoing, Provider reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above.
19.3. Governing Law, Jurisdiction and Venue. These Terms shall be governed by, and construed in accordance with, the laws of the state of Washington, without reference to its choice of law rules. Subject to the arbitration provisions below, exclusive venue for any action arising out of or in connection with this agreement shall be in King County, Washington. The parties each hereby consent to the jurisdiction and venue in King County, Washington and waive any objections to such jurisdiction and venue. Notwithstanding the foregoing, you agree that Provider shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
19.4. Dispute Resolution. Excluding claims for injunctive or other equitable relief, for any claim where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The arbitration shall be conducted by telephone, online or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
19.5 Limited Time to Bring Claim. Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Site or Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
19.6. Severability. If any portion of these Terms is found to be unenforceable or invalid for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the rest of these Terms will otherwise remain in full force and effect.
19.7. Assignment. You may not assign your rights or obligations under these Terms without the prior written consent of Provider, which may be withheld in Provider’s sole discretion. Provider may assign this Agreement in its sole discretion, including without limitation to a successor-in-interest that acquires all or substantially all of the ownership interests of Provider or the asset of Provider related to the Services. Where a portion of the Services are assigned to a third-party, this Agreement may be assigned to such third party with respect to such Services, and retained by Provider with respect to the Services retained by Provider, in which case you will be a party to two agreements, one with Provider and one with such third party.
19.8. Non-Waiver. Provider’s failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
19.9. Survival. Any sections or terms which by their nature should survive or are otherwise necessary to enforce the purpose of these Terms, will survive the termination of these Terms and termination of the Services.
19.10. Headings. All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms.
19.11. Provider’s Rights Cumulative. These Terms do not limit any rights that Provider may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to Provider, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Provider.
19.12 No Injunctive Relief. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Site or Services, or any other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
19.13 Notice. If you have any questions, complaints, or claims, you may contact Provider at the applicable contact information set forth herein.
19.14 Third-Party Beneficiaries. There shall exist no right of any person, other than you and Provider, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms.
19.15 Force Majeure. A party shall be excused for any failure to perform or delay in the performance of any of its non-monetary obligations hereunder if it is prevented from so doing by strikes, lockouts, work stoppages, material shortages, fires, floods, earthquakes, acts of God, epidemics, pandemics or outbreaks of infectious diseases or viruses, widespread disease or other health issues, trade sanctions, embargoes, acts of war, conditions caused by national emergency, or any rule, order or regulation of any governmental body or agency (each, an “Event of Force Majeure”). Any party affected by an Event of Force Majeure shall promptly give notice of the Event of Force Majeure to the other party and indicate in the notice, as accurately as possible, the effect of the Event of Force Majeure on the affected party’s capacity to perform its obligations under this Agreement and the anticipated duration of the Event of Force Majeure. An Event of Force Majeure shall not be cause for delaying payment of any amounts that are, or become, due.
19.16 Relationship. No independent contractor relationship, partnership, joint venture, employer-employee or franchise relationship is created by these Terms.
19.17 Electronic Communications. You acknowledge and agree that Provider may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures on Provider’s website or by emailing it to you at any email address provided to Provider by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.