Effective Date: May 12, 2022
Please read this Terms of Use Agreement (“Agreement”) carefully. This Agreement is a legal contract between you (“User”) and Spark Learning, Inc. (“Primer”, “We”, or “Us”)
Primer develops software and platforms to facilitate educational communities for kids.
By accessing or using this website, or any other websites with an authorized link to this Agreement (“Website”), installing or using our mobile application(s) (“Application”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the App (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you:
(1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services;
(2) if you are under eighteen (18) years of age (each, a “Minor User”), you are using the Services under the supervision of a parent or guardian of such Minor User (“Guardian”) who is agreeing to be bound by this Agreement;
(3) if you are a Guardian, you agree to the terms and conditions of this Agreement and shall be responsible for the Minor User’s acts or omissions with respect to the Services; and
(4) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services.
Except as otherwise provided herein, if User (or Minor User’s Guardian) do not agree to be bound by this Agreement, User may not access or use the Services.
Before getting to the details, a few callouts:
Services. The Services are protected by copyright laws throughout the world. Subject to the Agreement, Primer grants you a limited license to reproduce portions of the Services for the sole purpose of using the Services for your personal purposes. Unless otherwise specified by Primer in a separate license, your right to use any Services is subject to the Agreement.
Application License. Subject to your compliance with the Agreement, Primer grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
Updates. You understand that the Services are evolving. As a result, Primer may require you to accept updates to Services that you have installed on your computer or mobile device. You acknowledge and agree that Primer may update Services with or without notifying you. You may need to update third-party software from time to time in order to use Services.
Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of Services, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access Services in order to build a similar or competitive website, application or service; (d) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services. Any future release, update or other addition to Services shall be subject to the Agreement. Primer, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Service terminates the licenses granted by Primer pursuant to the Agreement.
Registering Your Account. In order to access certain features of Services, you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website or the Application (“Account”). Once you register an Account, Primer may require you to verify your identity through a third-party authentication solution to continue to access all Services associated with your subscription.
Registration Data. In registering an account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (m) of legal age to form a binding contract; and (n) not a person barred from using Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account (but in the case of Minor Users, the applicable Guardian is responsible for any such activities occurring under the Minor User’s Account). You may not share your Account or password with anyone, and you agree to (y) notify Primer immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Primer has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Primer has the right to suspend or terminate your Account and refuse any and all current or future use of Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use Services if you have been previously removed by Primer, or if you have been previously banned from any of Services.
Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Primer.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Services, including but not limited to, a mobile device that is suitable to connect with and use Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Services.
Types of Content. You acknowledge that all data, photos, images, video, data, text, music, exercise regimens, comments and other information (collectively “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Primer, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Services (“Your Content”), and that you and other Registered Users of Services, and not Primer, are similarly responsible for all Content that you and they Make Available through Services (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Primer has no obligation to pre-screen Content (including, but not limited to, User Content), although Primer reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Primer pre-screens, refuses or removes any Content, you acknowledge that Primer will do so for Primer’s benefit, not yours. Without limiting the foregoing, Primer shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
Storage. Unless expressly agreed to by Primer in writing elsewhere, Primer has no obligation to store any of Your Content that you Make Available on Services. Primer has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Services. You agree that Primer retains the right to create reasonable limits on Primer’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described within the Application and as otherwise determined by Primer in its sole discretion.
Services. Except with respect to Your Content and User Content, you agree that Primer and its suppliers own all rights, title and interest in Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
Your Content. Primer does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
License to Your Content. Subject to any applicable account settings that you select, you grant Primer a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Primer, are responsible for all of Your Content that you Make Available on or in Services.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Primer through its suggestion, feedback, wiki, forum or similar pages, or through any chat, email or other communication with Primer (“Feedback”) is at your own risk and that Primer has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant Primer a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Services and/or Primer’s business.
General. While using or accessing the Services you agree that you will not, under any circumstances:
Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
Interfere with or damage Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
Post false, inaccurate, misleading, defamatory or libelous content;
Blackmail, harass, intimidate or bully any users of the Services;
Take any action that may undermine our feedback or ratings systems;
Bypass our robot exclusion headers, interfere with the working of the Services, or impose an unreasonable or disproportionately large load on our infrastructure;
Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, including, without limitation, posting comments promoting other third-party products, services and websites;
Use the Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or
Make Available any Content that that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights.
Acceptable Use. In connection with your access to and use of the Services, you will not, and will ensure that Your Content that you Make Available on the Services does not:
violate any law, regulation, or court order;
violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral or “droit moral,” or other legal rights of any third party;
submit, post, share, or communicate anything that is, or that incites or encourages, action that is, explicitly or implicitly illegal, abusive, harassing, threatening, hateful, racist, derogatory, harmful to any reputation, pornographic, indecent, profane, obscene, or otherwise objectionable (including nudity) (collectively, the “Objectionable Content”), including but not limited to:
defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups, particularly if the app is likely to humiliate, intimidate, or harm a targeted individual or group.
realistic portrayals of people or animals being killed, maimed, tortured, or abused, or content that encourages violence;
depictions that encourage illegal or reckless use of weapons and dangerous objects, or facilitate the purchase of firearms or ammunition
overtly sexual or pornographic material, defined by Webster’s Dictionary as “explicit descriptions or displays of sexual organs or activities intended to stimulate erotic rather than aesthetic or emotional feelings”;
inflammatory religious commentary or inaccurate or misleading quotations of religious texts; or
false information and features, including inaccurate device data or trick/joke functionality, such as fake location trackers.
send advertising or commercial communications, including spam, or any other unsolicited or unauthorized communications;
stalk, harass, threaten, or harm any third party;
impersonate any third party;
participate in any fraudulent or illegal activity, including phishing, money laundering, or fraud; or
advocate, encourage, or assist any third party in doing any of the foregoing.
User Rules. Any features and/or services provided on the Services by Primer, including, but not limited to, user comments, instant messaging, and e-mail functions, are subject to this Agreement, and any other guidelines published or modified by Primer from time to time (collectively, the “Rules”). You agree to follow our Code of Conduct, and you understand that a breach of either of the Rules or the Code of Conduct will result in a violation of this Agreement. Notwithstanding anything to the contrary in the Rules, in the event that Primer determines, in its sole discretion, that you have violated the Rules, or that any Content violates the Rules, Primer will have the right to immediately remove such Content, in whole or in part, and to temporarily suspend your Account and access to the Services, with or without notice to you, prior or otherwise. In the event that Primer determines that your first violation was particularly offensive, Primer will have the right to immediately and permanently terminate your Account and access to the Services, with or without notice to you, prior or otherwise. Any user may report abuse by sending an email to [email protected] or by flagging the abusive content for Primer via the user interface.
Investigations. Primer may, but is not obligated to, monitor or review Services and Content at any time. Without limiting the foregoing, Primer shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Primer does not generally monitor user activity occurring in connection with Services or Content, if Primer becomes aware of any possible violations by you of any provision of the Agreement, Primer reserves the right to investigate such violations, and Primer may, at its sole discretion, immediately terminate your license to use Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Primer reserves the right, but has no obligation, to intercede in such disputes. You agree that Primer will not be responsible for any liability incurred as the result of such interactions.
Content Provided by Other Users. Services may contain User Content provided by other Registered Users. Primer is not responsible for and does not control User Content. Primer has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Registered Users at your own risk.
Third Party Links. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Primer does not control and is not responsible for Third-Party Links. Primer provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store (each, an “App Store”). You acknowledge that the Agreement is between you and Primer and not with the App Store. Primer, not the App Store, is solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that (i) the Agreement is concluded between you and Primer only, and not Apple, and (ii) Primer, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Primer and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Primer.
You and Primer acknowledge that, as between Primer and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Primer acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Primer and Apple, Primer, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You and Primer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
General. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Primer with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Primer with your credit card number and associated payment information, you agree that Primer is authorized to immediately invoice your Account for all fees and charges due and payable to Primer hereunder and that no additional notice or consent is required; provided, however, that only Users over the age of 18 may make any purchases on the Services. You agree to immediately notify Primer of any change in your billing address or the credit card used for payment hereunder. Primer reserves the right at any time to change its prices and billing methods, either immediately upon posting on Services or by e-mail delivery to you.
In-App Purchases. If you make any purchases within the Application (individually, an “In-App Purchase” and collectively, “In-App Purchases”), you acknowledge and agree: (a) to pay all fees or charges associated with such In-App Purchases in accordance with any and all applicable terms whether imposed by Primer or the App Store at the time a fee or charge is due and payable; (b) that Primer may retain any such payment information, including, but not limited to all debit and credit card information provided in connection with any In-App Purchase; and (c) that you will be charged for all fees and charges due and payable for any In-App Purchases hereunder and that no additional notice or consent is required to use the payment information you provide. Primer accepts certain credit cards as well as other forms of cash payment (e.g., PayPal) that are accepted by the App Store as payment methods for In-App Purchases.
Subscription Fees. You will be responsible for payment of the applicable subscription fee for the subscription services (the “Subscription Fee”). Your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial monthly subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Primer’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription prior to the Renewal Commencement Date. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, you can manage your subscription by going to the “Account Settings” page and clicking “cancel subscription,” by contacting us via our chat feature or by e-mail at [email protected]. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. For more information on refunds, please contact us via our chat feature or by e-mail at [email protected]. By subscribing, you authorize Primer to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Primer does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Primer may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
Taxes. The payments required under Section 8.3 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Primer determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Primer shall collect such Sales Tax in addition to the payments required under Section 8.3 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Primer, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Primer for any liability or expense Primer may incur in connection with such Sales Taxes. Upon Primer’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Withholding Taxes. You agree to make all payments of fees to Primer free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Primer will be your sole responsibility, and you will provide Primer with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Primer to have the charges reversed.
You agree to indemnify and hold Primer, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Primer Party” and collectively, the “Primer Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Service; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Primer reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Primer in asserting any available defenses. This provision does not require you to indemnify any of the Primer Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Application or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Services.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PRIMER PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE APPLICATION.
PRIMER PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. PRIMER MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PRIMER OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, PRIMER MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT PRIMER’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT PRIMER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PRIMER PARTIES LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, INCLUDING ANY USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT PRIMER DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. PRIMER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICES.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL PRIMER PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT PRIMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR INTERACTIONS WITH OTHER USERS OF SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (5) ANY OTHER MATTER RELATED TO SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PRIMER PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PRIMER PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PRIMER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL PRIMER PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO PRIMER BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; OR (C) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PRIMER PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PRIMER PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PRIMER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content. EXCEPT FOR PRIMER’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE PRIMER’S PRIVACY POLICY, PRIMER ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PRIMER AND YOU.
It is Primer’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Primer by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Primer’s Copyright Agent for notice of claims of copyright infringement is as follows: Spark Learning, Inc. d/b/a Primer, Attn: Copyright Agent, 548 Market Street, PMB 38216, San Francisco, California, 94104 or [email protected].
Violations. If Primer becomes aware of any possible violations by you of the Agreement, Primer reserves the right to investigate such violations. If, as a result of the investigation, Primer believes that criminal activity has occurred, Primer reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Primer is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Services, including Your Content, in Primer’s possession in connection with your use of Services, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Primer, its Registered Users or the public, and all enforcement or other government officials, as Primer in its sole discretion believes to be necessary or appropriate.
Breach. In the event that Primer determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Services, Primer reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Primer) that you have violated the Agreement;
Delete any of Your Content provided by you or your agent(s) to Services;
Discontinue your registration(s) with any of Services;
Discontinue your subscription to any Services;
Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
Pursue any other action which Primer deems to be appropriate.
At its sole discretion, Primer may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Primer reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Primer will remain due. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Primer intends to announce such Services or Content in your country. Services are controlled and offered by Primer from its facilities in the United States of America. Primer makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Primer and limits the manner in which you can seek relief from us. This Section 16 only applies to residents of the United States.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Primer, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Primer may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at (800) 352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Primer will pay them for you. In addition, Primer will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Primer. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND PRIMER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Primer are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Primer username (if any), the email address you used to set up your Primer account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided in Section 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Primer.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Primer makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Primer at the following address: Spark Learning, Inc. (Primer), 548 Market Street, PMB 38216, San Francisco, California, 94104.
Electronic Communications. The communications between you and Primer may take place via electronic means, whether you visit Services or send Primer e-mails, or whether Primer posts notices on Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Primer in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Primer provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Release. You hereby release Primer Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Users, first responders or medical personnel of any kind arising in connection with or as a result of the Agreement or your use of Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Primer Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Application or any Services provided hereunder.
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Primer’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Primer shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at: Spark Learning, Inc. d/b/a Primer, 548 Market Street, PMB 38216, San Francisco, California, 94104 or [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Primer agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
Governing Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
Notice. Where Primer requires that you provide an e-mail address, you are responsible for providing Primer with your most current e-mail address. In the event that the last e-mail address you provided to Primer is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Primer’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Primer at the following address: Spark Learning, Inc. d/b/a Primer, 548 Market Street, PMB 38216, San Francisco, California, 94104. Such notice shall be deemed given when received by Primer by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Primer are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Primer products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.