Terms and Conditions of Use
Indelible Learning, Inc., (“Indelible Learning” or “We” or “Us”), operates the web site located at https://indeliblelearning.com and related application programming interfaces (API’s), mobile applications and online services (the “Website”). The following Terms of Service are a legal contract between you (“You”) and Indelible Learning regarding your use of the Website. Visitors and users of the Website are referred to individually as “User” and collectively as “Users”.
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, OR USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE INDELIBLE LEARNING PRIVACY NOTICE AND ANY ADDITIONAL GUIDELINES (AS DEFINED BELOW) (COLLECTIVELY, THE “TERMS”).
IF YOU ARE A PARENT OR GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO REGISTER WITH THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN RESPECT OF SUCH CHILD’S USE OF THE WEBSITE.
1 Eligibility; Accounts
THE WEBSITE IS NOT AVAILABLE TO (A) ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE WEBSITE BY INDELIBLE LEARNING OR (B) ANY PERSONS UNDER THE AGE OF 13 WHOSE REGISTRATION HAS NOT BEEN APPROVED BY A LEGAL PARENT OR GUARDIAN. By clicking the “I Agree” button or by otherwise using or registering an account for the Website, You represent (a) that You have not been previously suspended or removed from the Website by Indelible Learning; (b) that You are either (i) at least 13 years of age or (ii) Your parent and/or guardian has consented to Your use of the Website; and (c) that your registration and your use of the Website is in compliance with any and all applicable laws and regulations.
1.1 Account. In order to use certain features of the Website, you must register for an account. You may be asked to provide a password in connection with your account. You are solely responsible for maintaining the confidentiality of your account and password, and You agree to accept responsibility for all activities that occur under your account or password. You agree that the information You provide to Indelible Learning, whether at registration or at any other time, will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. If You have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), then You agree to immediately notify Indelible Learning at email@example.com. You may be liable for the losses incurred by Indelible Learning or others due to any unauthorized use of your Website account.
1.3 Child User. If You are a User of the Website and are under the age of 13 (“Child User”), You may not register an account for the Website without consent and approval from your legal parent or guardian. A Child User that begins the registration process for himself or herself without a Parent User may have the registration process restricted until a Parent User approves or assumes responsibility for the Child User account. Additionally, a Child User may use the Website if registered through certain educational organizations or, in certain cases (as defined below), by Coaches that have entered into a relationship directly with Indelible Learning and through which education organization or Coach the legal parent and/or guardian of such Child User has consented to use of the Website. Further, in certain instances, a Child User may use our Website via one of the third party applications that integrate into or with the Website. A Child User that has registered through such external educational organizations, third party applications, or Coaches will only be permitted to use the Website for so long as Indelible Learning reasonably believes that such access has been consented to by the Child User’s parent or guardian.
1.4 Parent User. If You are at least 18 years of age and you are the legal parent or guardian of a child that seeks to register as a Child User of the Website, You may register a parent account on the Website (“Parent User”). As a Parent User, you may create, register, manage and approve Child User accounts only for your own child(ren) or child(ren) for whom you are a legal guardian. IF YOU REGISTER, APPROVE THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD USER, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD USER’S LEGAL PARENT OR GUARDIAN AND YOU AGREE TO BE BOUND BY THE TERMS ON BEHALF OF SUCH CHILD USER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE WEBSITE BY THE CHILD USER. You acknowledge that Indelible Learning may choose, but is not obligated, to make any inquiries, either directly or through third parties, that Indelible Learning deems necessary to validate Your registration information, including without limitation engaging third parties to provide verification services. Indelible Learning reserves all rights to take legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT INDELIBLE LEARNING CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY USER AND INDELIBLE LEARNING IS NOT OBLIGATED TO VERIFY THE IDENTITY OF ANY USER, INCLUDING ANY USER’S CLAIM TO BE A PARENT USER, OR TO VERIFY THAT A PARENT IDENTIFIED BY A CHILD USER OR A COACH DURING REGISTRATION IS SUCH CHILD USER’S ACTUAL PARENT OR GUARDIAN. A Parent User account, along with all associated Child User accounts, may be terminated by Indelible Learning at any time and without warning for any failure to abide by these Terms.
1.5 Coach. Indelible Learning may make available certain features and tools that permit certain Users (such as, for example, representatives of school districts, schools, teachers, and other educators) to work with students and other Users through the Website in order to provide such students and other Users with tutorial, educational and other education-related services, and to review and evaluate educational achievement and progress of such students and other Users (each a “Coach”). If you are a Coach, you must use Indelible Learning’s Coach registration process when registering accounts on the Website for one or more of your students. IF YOU ARE A COACH AND YOU REGISTER AN ACCOUNT FOR A CHILD USER, YOU REPRESENT AND WARRANT THAT YOU HAVE RECEIVED EXPRESS CONSENT FROM SUCH CHILD USER’S PARENT OR LEGAL GUARDIAN FOR YOU TO REGISTER THE CHILD USER FOR THE WEBSITE AND FOR YOU TO PROVIDE TO INDELIBLE LEARNING THE INFORMATION YOU DISCLOSE IN CONNECTION WITH THE REGISTRATION OF SUCH CHILD USER. WITHOUT LIMITING THE FOREGOING, YOU FURTHER AGREE TO BE BOUND BY THESE TERMS ON BEHALF OF SUCH CHILD USER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE WEBSITE BY THE CHILD USER, FOR SO LONG AS THE CHILD USER IS NOT OTHERWISE ASSOCIATED WITH OR ASSUMED BY A VALID PARENT USER ACCOUNT. You hereby agree to indemnify, defend and hold harmless Indelible Learning against any and all claims, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to (a) your violation of any provision, representation or warranty this Section 1.5; (b) the use of the Website by the Child User; (c) your failure to obtain sufficient parental or legal guardian consent; (d) your registration of the Child User, or (e) any other action related to the Child User.
2 Privacy Notice
Your privacy is important to Indelible Learning. Please read the Indelible Learning Privacy Notice, hereby incorporated into the Terms, carefully for information relating to Indelible Learning’s collection, use, and disclosure of Your personal information.
3 Modification of the Terms
Indelible Learning reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time. Please check the Terms and any Guidelines periodically for changes. Your continued use of the Website after the posting of changes constitutes your binding acceptance of such changes. For any material changes to the Terms, Indelible Learning will make reasonable effort to provide notice to you of such amended Terms, such as by an email notification to the address associated with your account or by posting a notice on the Website, and such amended terms will be effective against You on the earlier of (i) your actual notice of such changes and (ii) thirty days after Indelible Learning makes reasonable attempt to provide you such notice. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose.
4 User Content License Grant; Representations and Warranties
4.1 User Content. Indelible Learning may permit (a) the posting and/or publishing by You and other Users of notes, questions, comments, ratings, reviews, images, videos and other audio-visual materials and communications (collectively, “User Postings”) and (b) the posting, creation, or modification by You and other users of computer code (including source code and object code) (“User Code”) (User Postings and User Code, collectively, “User Content”). You understand that whether or not such User Content is published, Indelible Learning does not guarantee any confidentiality with respect to any submissions.
4.2 License Grant to Indelible Learning. By posting, submitting or distributing User Content on or through the Website, You hereby grant to Indelible Learning a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, distribute, prepare derivative works of, use, make, have made, sell, offer for sale, import, and otherwise exploit your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).
4.3 License Grant to Users. (a) User Postings. By posting, submitting or distributing User Postings through the Website, You hereby grant to each User of the Website a non-exclusive license to access and use your User Postings in any manner permitted or made available by Indelible Learning on or through the Website.
(a) User Code. By posting, submitting or distributing User Code through the Website, You hereby grant to each User of the Website a non-exclusive license to access, use, reproduce, and distribute your User Code as fully permitted under, and in accordance with the terms of, the MIT license (currently available at: http://opensource.org/licenses/mit-license.php) (the “MIT License”).
4.4 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting, creating, or publishing them. You represent and warrant that: (1) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Indelible Learning and Indelible Learning’s Users to use and distribute your User Content as necessary to exercise the licenses granted by You in these Terms and in the manner contemplated by Indelible Learning and these Terms; (2) your User Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (3) your User Content does not contain any viruses, adware, spyware, worms, or other malicious code.
4.5 Access to Your User Content. Indelible Learning may permit Users to share their User Content with a select group of other Users, or make their User Content public for all (even non-Website users) to view. You acknowledge and agree that, although Indelible Learning may provide certain features intended to allow you to restrict some User Content you create from others, Indelible Learning does not guarantee that such User Content will never be accessible by others. In the event of unauthorized access, Indelible Learning will use reasonable efforts to notify you pursuant to Section 14.1 below. INDELIBLE LEARNING HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY UNAUTHORIZED ACCESS TO ANY RESTRICTED USER CONTENT.
4.6 User Content Disclaimer. You understand that when using the Website You will be exposed to User Content from a variety of sources, and that Indelible Learning is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that You may be exposed to User Content that is inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against Indelible Learning with respect thereto. Indelible Learning does not endorse any User Content or any opinion, recommendation or advice expressed therein, and Indelible Learning expressly disclaims any and all liability in connection with User Content.
5 Digital Millennium Copyright Act
It is Indelible Learning’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Indelible Learning’s DMCA Notification Guidelines. Indelible Learning will promptly terminate without notice your access to the Website if You are determined by Indelible Learning to be a “repeat infringer.” A repeat infringer is a User who has been notified by Indelible Learning of infringing activity violations more than twice and/or who has had User Content or any other user-submitted content removed from the Website more than twice.
6 Proprietary Materials; Licenses
6.1 Proprietary Materials. The Website is owned and operated by Indelible Learning. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), software, services, content, educational videos and exercises, and all other elements of the Website (the “Website Materials”) are protected by United States and international copyright, patent, and trademark laws, international conventions, and other applicable laws governing intellectual property and proprietary rights. Except for any User Content provided and owned by Users and except as otherwise set forth in this Section 7, all Website Materials, and all trademarks, service marks, and trade names, contained on or available through the Website are owned by or licensed to Indelible Learning, and Indelible Learning reserves all rights therein and thereto not expressly granted by these Terms.
6.2 Licensed Educational Content. Indelible Learning may make available on the Website certain educational videos, exercises, and related supplementary materials that are owned by Indelible Learning or its third-party licensors (the “Licensed Educational Content”). Indelible Learning grants to you a non-exclusive, non-transferable right to access and use the Licensed Educational Content as made available on the Website by Indelible Learning solely for your personal, non-commercial purposes. Unless expressly indicated on the Website that a particular item of Licensed Educational Content is made available to Users under alternate license terms, you may not download, distribute, sell, lease, modify, or otherwise provide access to the Licensed Educational Content to any third party.
(a) Alternate Licenses. In certain cases, Indelible Learning or its licensors may make available Licensed Educational Content under alternate license terms, such as a variant of the Creative Commons License (as defined below) (each, an “Alternate License”). Where expressly indicated as such on the Website, and subject to the terms and conditions of these Terms, the applicable Licensed Educational Content is licensed to You under the terms of the Alternate License. By using, downloading, or otherwise accessing such Licensed Educational Content, You agree to comply fully with all the terms and conditions of such Alternate License.
(b) Creative Commons License. Unless expressly otherwise identified on the Website with respect to a particular item of Licensed Educational Content, any reference to the “Creative Commons”, “CC” or similarly-phrased license shall be deemed to be a reference to the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 United States License (available at http://creativecommons.org/licenses/by-nc-sa/3.0/us/) (the “Creative Commons License”).
6.3 Licensed Educational Code. Indelible Learning may make available, or allow Users to create and make available, on or through the Website certain educational, user-readable source code in connection with the “Computer Science” modules or exercises available on the Website (the “Licensed Educational Code”). Unless otherwise indicated, all Licensed Educational Code is the property of Indelible Learning or third-party licensors and, subject to the terms and conditions of these Terms, is licensed to You under the terms of the MIT License. By downloading or otherwise accessing such Licensed Educational Code, you agree to comply with all the terms of the MIT License.
6.4 Non-Commercial Use. The Licensed Educational Content and Licensed Educational Code are intended for personal, non-commercial use only. Without limiting the foregoing, and notwithstanding the terms of any Alternate License for such Licensed Educational Content, the Licensed Educational Content may not be used, distributed or otherwise exploited for any commercial purpose, commercial advantage or private monetary compensation, unless otherwise previously agreed in writing by Indelible Learning.
(a) Impermissible Uses. Without limiting the generality of the foregoing, the following are types of uses that Indelible Learning expressly defines as falling outside of “non-commercial” use:
i. the sale or rental of (1) any part of the Licensed Educational Content, (2) any derivative works based at least in part on the Licensed Educational Content, or (3) any collective work that includes any part of the Licensed Educational Content;
ii. providing training, support, or editorial services that use or reference the Licensed Educational Content in exchange for a fee; and
iii. the sale of advertisements, sponsorships, or promotions placed on the Licensed Educational Content, or any part thereof, or the sale of advertisements, sponsorships, or promotions on any website or blog containing any part of the Licensed Educational Material, including without limitation any “pop-up advertisements”.
(b) Use Characterization. Whether a particular use of the Licensed Educational Content is “non-commercial” depends on the use, not the user. Thus, a use of the Licensed Educational Content that does not require that users pay fees and that does not provide an entity with a commercial advantage is “non-commercial,” even if this use is by a commercial entity. Conversely, any use that involves charging users in connection with their access to the Licensed Educational Content is not “non-commercial,” even if this use is by a non-profit entity. As an example, a for-profit corporation’s use of the Licensed Educational Content for internal professional development or training of employees is permitted, so long as the corporation charges no fees, directly or indirectly, for such use. Conversely, as another example, a non-profit entity’s use of the Licensed Educational Content in connection with an fee-based training or educational program is NOT “non-commercial” and is not permitted.
6.5 Crediting Indelible Learning. If You distribute, publicly perform or display, transmit, publish, or otherwise make available any Licensed Educational Content or any derivative works thereof, You must also provide the following notice prominently along with such Licensed Educational Content or derivative work thereof: “All Indelible Learning content is available at www.indeliblelearning.com”.
7 Prohibited Conduct
YOU AGREE NOT TO:
- use the Website for any commercial use or purpose unless expressly permitted by Indelible Learning in writing, it being understood that the Website and related services are intended for personal, non-commercial use only;
- except as expressly permitted under Sections 5.3 and 7 of these Terms, rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses for any Website Materials;
- post, upload, or distribute any defamatory, libelous, or inaccurate User Content or other content;
- post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Website accounts of others without permission, or perform any other fraudulent activity;
- delete the copyright or other proprietary rights notices on the Website or on any Licensed Educational Content, Licensed Educational Code, or User Content;
- assert, or authorize, assist, or encourage any third party to assert, against Indelible Learning or any of its affiliates or licensors any patent infringement or other intellectual property infringement claim regarding any Licensed Educational Content, Licensed Educational Code, or User Content You have used, submitted, or otherwise made available on or through the Website;
- make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Website (including, but not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
- use the Website for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
- defame, harass, abuse, threaten or defraud Users of the Website, or collect, or attempt to collect, personal information about Users or third parties without their consent;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of the Website, Licensed Educational Content, Licensed Educational Code, or User Content, features that prevent or restrict use or copying of any content accessible through the Website, or features that enforce limitations on the use of the Website, Licensed Educational Content, Licensed Educational Code, or User Content;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the Website or any part thereof, except and only to the extent expressly permitted by Indelible Learning herein or to the extent the foregoing restriction is expressly prohibited by applicable law; or
- intentionally interfere with or damage operation of the Website or any user’s enjoyment of it, by any means, including without limitation by participation in any denial-of-service type attacks or by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
8 Third-Party Sites, Products and Services; Links
The Website may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). Indelible Learning does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH REFERENCE SITES IS SOLELY AT YOUR OWN RISK.
9.1 Termination by Indelible Learning. Indelible Learning, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with Indelible Learning or your use of the Website and remove and discard all or any part of your account, User profile, and User Content, at any time. Indelible Learning may also in its sole discretion and at any time discontinue providing access to the Website, or any part thereof, with or without notice. You agree that any termination of your access to the Website or any account You may have, or portion thereof, may be affected without prior notice, and You agree that Indelible Learning will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Indelible Learning may have at law or in equity. As discussed herein, Indelible Learning does not permit copyright, trademarks, or other intellectual property infringing activities on the Website, and will terminate access to the Website, and remove all User Content or other content submitted, by any Users who are found to be repeat infringers.
9.2 Termination by You. Your only remedy with respect to any dissatisfaction with (i) the Website, (ii) any term of these Terms of Service, (iii) Guidelines, (iv) any policy or practice of Indelible Learning in operating the Website, or (v) any content or information transmitted through the Website, is to terminate the Terms and your account. You may terminate the Terms at any time by deleting your login account with the Website and discontinuing use of any and all parts of the Website.
You agree to indemnify, defend, and hold harmless Indelible Learning, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (“Indelible Learning Indemnitees”) from any claims, losses, damages, liabilities, and expenses (including legal fees and expenses), arising out of any use or misuse of the Website, any violation of the Terms, or any breach of the representations, warranties, and covenants made herein, whether by You or by any Child User associated with you if you are a Parent User or Coach. Indelible Learning reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Indelible Learning, and You agree to cooperate with Indelible Learning’s defense of these claims. Indelible Learning will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
11 Disclaimers; No Warranties
11.1 No Warranties. THE WEBSITE, AND ALL DATA, INFORMATION, SOFTWARE, WEBSITE MATERIALS, CONTENT, USER CONTENT, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INDELIBLE LEARNING, AND ITS AFFILIATES AND LICENSORS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INDELIBLE LEARNING OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
11.2 Content. INDELIBLE LEARNING, AND ITS SUPPLIERS, LICENSORS, AND AFFILIATES, DO NOT WARRANT THAT THE WEBSITE OR ANY DATA, USER CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
11.3 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING OF CONTENT, WEBSITE MATERIALS, SOFTWARE, OR DATA THROUGH THE WEBSITE (INCLUDING THROUGH ANY API’S) IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS THEREFROM.
11.4 Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
12 Limitation of Liability and Damages
12.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL INDELIBLE LEARNING OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR PROFITS, LOSS OF DATA, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE WEBSITE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH INDELIBLE LEARNING, EVEN IF INDELIBLE LEARNING OR A INDELIBLE LEARNING AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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, INDELIBLE LEARNING’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
12.2 Limitation of Damages. IN NO EVENT WILL INDELIBLE LEARNING’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSORS’, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE WEBSITE OR YOUR INTERACTION WITH OTHER WEBSITE USERS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE WEBSITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
12.3 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT INDELIBLE LEARNING HAS OFFERED THE WEBSITE AND ENTERED INTO THE TERMS IN RELIANCE UPON THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND INDELIBLE LEARNING, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND INDELIBLE LEARNING. INDELIBLE LEARNING WOULD NOT BE ABLE TO PROVIDE THE WEBSITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
13.1 Notice. Indelible Learning may provide You with notices, including those regarding changes to the Terms, by email, regular mail, postings on the Website, or other reasonable means. Notice will be deemed given twenty-four hours after email is sent, unless Indelible Learning is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the Website. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Website is deemed given 30 days following the initial posting.
13.2 Waiver. The failure of Indelible Learning to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by Indelible Learning.
13.3 Dispute Resolution and Arbitration.
(a) Governing Law. The Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
(b) Arbitration. For any claim related to the Terms or the Website, excluding claims for injunctive or other equitable relief, where the total amount sought is less than ten thousand U.S. Dollars ($10,000.00 USD), either Indelible Learning or You may elect at any point in or during a dispute or proceeding to resolve the claim through binding non-appearance-based arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to the Terms or Indelible Learning will be filed only in the state or federal courts in and for Santa Clara County, California, and each of You and Indelible Learning hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, except as provided in Section 14.3(b) regarding arbitration. Notwithstanding this, Indelible Learning shall still be allowed to apply for injunctive or other equitable relief to protect or enforce its intellectual property rights in any court of competent jurisdiction.
(d) Improperly Filed Claims. All claims you bring against Indelible Learning must be resolved in accordance with this Section 14.3. All claims filed or brought contrary to this Section 14.3 shall be considered improperly filed. Should either party file a claim contrary to this Section 14.3, the other party may recover attorneys’ fees and costs up to one thousand U.S. Dollars ($1,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
(e) Claims. YOU AND INDELIBLE LEARNING AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13.4 Severability. If any provision of the Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
13.5 Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You without Indelible Learning’s prior written consent, but may be assigned by Indelible Learning without consent or any restriction. Any assignment attempted to be made in violation of the Terms shall be null and void.
13.6 Survival. Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 4 through 6, 7.1, 7.4, 7.5, and 8 through 14.
13.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of the Terms, and will not be deemed to limit or affect any of the provisions hereof.
13.8 Entire Agreement. The Terms, the Privacy Notice and Guidelines constitute the entire agreement between You and Indelible Learning relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to the Terms, Privacy Notice or Guidelines made by Indelible Learning as set forth in Section 4 above.
13.9 Disclosures. The Website is hosted in the United States, and the services provided hereunder are offered by Indelible Learning: 46 Peninsula Ctr Ste E347, Rolling Hills Estates, CA 90274; firstname.lastname@example.org.
Last Updated: February 10, 2020