Terms of Service

THIS AGREEMENT (the “Agreement”) is entered into between ObjectiveEd.com, Inc. (“OED”) and Customer on the following terms and conditions:

1. Agreement

(a) Generally.

This Agreement governs Customer's relationship with OED as well as its (and its Authorized User's) use of OED's Online Services, which includes associated Games and Digital Curriculum. The Agreement is comprised of the provisions that follow and any additional or different terms that may from time to time be implemented under Subsection (b) ("Changes to Agreement") by OED.

(b) Changes to Agreement.

OED may change or add provisions to this Agreement from time to time in its sole discretion by publishing a notice in the Online Services. All changes are effective upon publication. Customer's continued use of Online Services or associated Games and Digital Curriculum after the effective date of any amendment to this Agreement will constitute Customer's acceptance of the amendment. If Customer does not agree with a proposed change, Customer may exercise Customer's termination rights under Section 10 ("Term & Termination").

2. Online Services

(a) Generally.

OED will make available to Customer certain application services. For purposes of this Agreement, all features, access privileges and application services, shall be collectively referred to as Online Services ("Online Services"). OED may in its sole discretion upgrade, change, add, suspend or discontinue any Online Service(s) at any time.

(b) Third Party Interaction.

Customer and its Authorized Users may enter into correspondence with, use content created by, purchase goods and/or services from, or participate in promotions of third-party content creators, advertisers, or sponsors showing their goods and/or services through the Online Services. Any such activity, including any terms, conditions, warranties or representations associated with such activity, is solely between Customer, its Authorized Users and the applicable third party. OED is not a party to any transaction between Customer and any third-party providing goods and/or services through the Online Services. OED shall have no liability, obligation or responsibility for any such correspondence, use, purchase or promotion between Customer, its Authorized Users and any such third party. OED DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING GOODS OR SERVICES CUSTOMER PURCHASES OR OBTAINS FROM THIRD PARTY SUPPLIERS. CUSTOMER AGREES TO LOOK SOLELY TO THIRD PARTY SUPPLIERS FOR ALL CLAIMS REGARDING SUCH GOODS OR SERVICES.

3. Access to Online Services

(a) Remote Access Software.

Customer may access Online Services through any third-party software that meets the compatibility requirements from time to time published by OED. Customer assumes all risk for ensuring the ongoing compatibility of third party software with the Online Services.

(b) Remote Access Equipment.

Customer is responsible at Customer's own expense to obtain, install, configure and maintain equipment to access and use the Online Services. Customer assumes all risk for ensuring the ongoing compatibility of remote access equipment with the Online Services.

(c) Telecommunications.

Customer will access the Online Services through the Internet. Customer is solely responsible for the cost, installation, performance, integrity, maintenance and integration of its Internet connection.

(d) Customer Support.

OED shall provide Customer with e-mail and other on-line technical support as part of this Agreement. OED shall not provide any user training unless contracted for such services.

4. Use of Online Services

(a) Authorized Users.

Customer agrees Online Services will be used only by Customer and a designated student/child (Authorized Users) for the beneficial purposes described in Subsection 4(b)("Permitted Uses"). Customer shall notify each Authorized User of any and all obligations in this Agreement that relate to permitted and prohibited uses, user conduct, the security and confidentiality of data, passwords, and other requirements that are reasonably expected to be understood and undertaken by Authorized Users. Customer agrees to register with a unique, valid electronic mail address, which shall function as Authorized Users' Login ID. A secret password for obtaining access to the Online Services through each Authorized User's account will be assigned by Customer or chosen by the Authorized User. It is the Authorized User's responsibility to safeguard and protect his or her password from disclosure or use by others. Authorized User will promptly change his or her password and Customer will immediately notify OED if Authorized User or Customer has reason to believe any of Customer's Authorized Users' accounts are being accessed or used by others. Authorized Users' accounts cannot be "shared" or used by more than one individual. Customer agrees to maintain a single user account for each of its Authorized Users. Customer and its Authorized Users are solely responsible for any and all activities that occur under Authorized Users' account and for ensuring that Authorized Users properly exit or log off from their accounts at the end of each session of use. OED is not responsible for any unauthorized access to, or alteration of, Customer's or its Authorized Users' transmissions or Data. Customer agrees that the Authorized User student/child use of Online Services may not be transferred to another student/child. Customer agrees that the Authorized User student/child is in grades K-12.

(b) Permitted Uses.

Subject to timely payment of applicable Service Fee, Customer is granted during the Term of this Agreement a non-exclusive, nontransferable, limited license to access and make permitted use of the Online Services. For purposes of this Agreement, permitted use ("Permitted Use") means to execute Remote Access Software supplied by Customer (or available System Commands), to display information derived from the Online Services on Customer's computer or terminal screen, to download and store in nonvolatile memory insubstantial parts of such information in machine readable form indefinitely, and to print a reasonable number of copies of such information.

(c) Prohibited Uses.

Except as authorized under Subsection 4(b) ("Permitted Uses"), Customer may not display, copy, download, store, reproduce, transmit, distribute, resell or otherwise commercially exploit any part of the Online Services, including any data or information derived from the Online Services, in any format or through any technology or media now existing or hereafter developed. Customer is specifically prohibited from disseminating any part of the Online Services, data or information in a manner that potentially would usurp the market for the Online Services, including transmittal of copyrighted material from the Online Services without the owner's express authorization and the prior written consent of OED.

(d) User Conduct.

Customer and its Authorized Users agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer and its Authorized Users' use of the Online Services. In addition, Customer certifies its Authorized Users shall not, without limitation, use Online Services or information from Online Services to: (i) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (ii) transmit through or post on the Online Services unlawful, immoral, libelous, abusive, harassing, tortuous, defamatory, threatening, harmful, invasive, vulgar, obscene or otherwise objectionable material of any kind or nature which is harmful to minors in any way; (iii) transmit through or post to the Online Services any material that may infringe the intellectual property rights or other proprietary rights of third parties, including trademark, copyright or right of publicity; (iv) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots; (v) interfere with or disrupt the integrity of any data or computer-based information or any servers or networks connected to the Online Services or violate the regulations, policies or procedures of such networks; (vii) attempt to gain unauthorized access to the Online Services, other accounts, computer systems or networks connected to the Online Services; or (viii) harass or interfere with another Customer's use and enjoyment of the Online Services.

(e) No Assignment.

Customer agrees to use Online Services strictly in support of Customer's student/child and to process Customer's own data. Customer may not assign, transfer, sublicense, rent, lease or loan any of Customer's rights, nor delegate any of Customer's obligations under this Agreement and any attempt to the contrary shall be void and a material breach of this Agreement.

(f) Certain Law-Related Features.

Customer may use certain law-related features in the Online Services for general reference only and subject to the following conditions. None of the Online Services, including communications Customer may have with OED will establish an attorney-client relationship or constitute "legal advice". Customer will not claim detrimental reliance on any information obtained from the Online Services but instead will independently verify through outside sources the accuracy, completeness and fitness of all such information.

5. Price & Payment

(a) Application Service Fees.

OED shall provide Customer with Online Services in consideration for the Service Fee. Customer's child count for the Online Services selected will be used as the basis for calculating the Service Fee. This Agreement shall automatically renew thereafter on the anniversary of the Subscription Service Renewal Date unless terminated by Customer according to the provisions of Section 10 ("Term & Termination").

(b) Taxes.

Customer will pay all sales, use, value-added, personal property or other governmental tax or levy imposed on the goods or services provided to Customer (including interest and penalties imposed thereon) other than taxes based on the net income or profits of OED. If Customer fails to pay any amount when due, then this Agreement (including any right to use) may, at OED's option, be suspended or terminated. Customer agrees to pay all costs of enforcement, including reasonable legal fees.

6. Certain Proprietary Rights

(a) Confidential Information Ownership.

Customer acknowledges and agrees that all right title and interest in and to the Online Services and the features provided therein are the exclusive property of OED or other owner designated in the Online Services and that the Online Services constitute the confidential and proprietary information of OED or such other designated owner. Customer will at all times use due diligence to safeguard and protect all such confidential and proprietary information.

(b) Account Information and Data Rights.

OED will NOT monitor, edit or willfully disclose any Data except as may be required or authorized by law. In the event that OED receives such a request or demand for Data, OED will take commercially reasonable steps to inform Customer in advance, to the extent permitted by law. For purposes of this Agreement, "Data" shall mean any student specific biographic or demographic information or material, including student name, address, social security or other identification number that Customer's Authorized Users submit to the Online Services. OED's service does not require the use of actual student names or other identifying information. Student names are solely for the benefit of Customer, and may be coded. OED may access and use Customer accounts, including its Data, to respond to service or technical problems and to improve the effectiveness of its products and services. OED may also use account email addresses, excluding student email addresses which users should not enter into the system, to update users about service subscription information and issues, usage and usage suggestions, and new features. Customers may unsubscribe from some emails, but system messages must be deliverable for the term of this agreement. Customer is solely responsible for the accuracy, completeness, quality, integrity, legality, reliability and copyright of such Data, and OED shall not be responsible or liable for the deletion, correction, loss or failure to store Data. OED reserves the right to withhold, remove and/or discard Data without notice for any breach of this Agreement by Customer, including, without limitation, non-payment.

(c) Copyrights.

Customer agrees that all right, title and interest (including all copyrights and other intellectual property rights) in the Online Services belong exclusively to OED or other owner designated in the Online Services. Customer grants OED and its users a royalty free, perpetual, irrevocable, non-exclusive license to use, copy, modify, prepare derivative works of and redistribute any suggestions, ideas, feedback, recommendations or other information, including learning goals, objectives, and teaching plans, (in whole or in part) submitted by Customer and its Authorized Users to the Online Services ("Submissions") on a world-wide basis through technologies now existing or hereafter developed. OED retains exclusive ownership of all "compilation" and "collective work" copyrights in the selection, coordination and arrangement of such Submissions as a whole.

(d) Certain Trade Secrets.

The Online Services are provided to Customer in machine readable form. Customer agrees not to disassemble, decompile or reverse engineer any of the Online Services features. Customer also agrees that any information obtained in violation of this restriction will be confidential and information automatically and irrevocably deemed assigned to and owned exclusively by the owner of the original feature. Customer will at all times use due diligence to safeguard and protect all such confidential and proprietary information.

(e) Identifying Marks.

Customer will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Online Services and any data, information or other content obtained from such Online Services remain intact and clearly legible.

(f) Confidentiality.

OED will use commercially reasonable efforts to maintain the confidentiality of any student record information submitted by Customer and its Authorized Users to the Online Services and will only disclose such student record information to those of its employees, consultants or agents who have a need to know such information in order to perform OED's duties hereunder.

7. Force Majeure

OED is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes include, without limitation, fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by OED. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 8 ("Warranties").

8. Warranties

The following provisions are subject to Section 9 ("Limitation of Remedies & Liabilities").

(a) Noninfringement Warranty.

   (i) OED Content.

OED warrants to the best of its knowledge and belief that it has the rights needed to enter into this Agreement and that Permitted Uses by Customer of features in the Online Services created by OED ("OED Content") will not infringe or misappropriate any United States copyright, trademark, patent, or the trade secrets of any third persons. If promptly notified of any claim to the contrary, OED shall (i) defend through litigation or obtain through negotiation Customer's right to continue using the OED Content; (ii) rework the OED Content to make it non-infringing, or (iii) replace the OED Content with functionally equivalent content.

   (ii) User Content.

Customer warrants that any Authorized User Content ("Authorized User Content") uploaded by Customer to the Online Services will not infringe or misappropriate any copyright, trademark, patent, or the trade secrets of any third persons, or otherwise violate this Agreement or any applicable law. Customer also agrees to have all Authorized User Content contributed through Customer's account screened for software viruses and will use due diligence to remove any viruses capable of being detected with commercially available detection programs.

   (iii) Security.

OED represents that it will utilize commercially reasonable administrative, technical, and physical measures to maintain the confidentiality and security of the student record information submitted by Customer. OED expressly disclaims (i) any warranty that these security measures will be 100% effective or error-free or (ii) any liability related to the confidentiality and security measures utilized by third party providers.

(b) Regulatory Changes.

OED warrants that the Online Services (other than those provided by third party providers) shall comply with all applicable federal and state laws and regulations. All compliance updates to the Online Services are included at no additional cost as part of Customer's annual application service subscription fee.

(c) Third Party Content.

OED is a distributor (and not a publisher) of any features, contributions or content supplied by third party vendors and available to Authorized Users of the Online Services. OED has no control over such content and is not responsible for screening, policing, editing or monitoring such content. If notified of allegedly infringing, defamatory, damaging, illegal or offensive material, OED may investigate the allegation and determine in good faith and in its sole discretion whether to remove or request the removal of such material from the Online Services. If OED elects to perform (or not to perform) any such activities, it shall be held harmless from all claims so long as it acts in good faith.

(d) Disclaimer.

Except as provided in this Section, Customer agrees that the Online Services are provided strictly on an "as is" and "as available" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. Customer accepts all risk concerning suitability, use, performance or nonperformance of the Online Services. OED MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE ONLINE SERVICES OR ANY CONTENT INCLUDED THEREIN. OED DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE ONLINE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE ONLINE SERVICES OR THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER OR ITS AUTHORIZED USERS THROUGH THE ONLINE SERVICES WILL MEET ITS REQUIREMENTS OR EXPECTATIONS; (III) ANY DATA STORED WILL BE ACCURATE, COMPLETE OR RELIABLE; (IV) THE ONLINE SERVICES OR THE SERVER(S) THAT MAKE THE ONLINE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OED MAKES NO REPRESENTATION, WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

(e) Indemnification.

Customer will defend, indemnify and hold OED, its directors, employees and agents, harmless from all liability and expense (including attorney fees) arising from any third party claim that a) the Data has been subject to unauthorized access, use or disclosure, b) any Authorized User has failed to comply with the requirements of this Agreement, particularly with respect to User Content and User authentication, c) the Data or User Content infringes intellectual property rights of the claimant.

9. Limitation of Remedies & Liabilities

The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:

(a) Remedies.

Customer agrees that if the OED violates any warranty or other provision of this Agreement, and OED determines that repair or other corrective action is not economically or technically feasible, Customer's sole and exclusive remedy will be to obtain a refund, prorated based on the Term of this Agreement. Customer also agrees that legal remedies alone provide inadequate protection of intellectual property rights described in Section 6 ("Certain Proprietary Rights") and that, in addition to other relief, OED or other owner may go to court and without necessity of posting bond obtain temporary and permanent injunctions to enforce those rights. Customer will defend, indemnify and hold OED harmless from all claims and expenses (including reasonable legal fees) arising from any violation by Customer of this Agreement or applicable law.

(b) Liabilities.

OED IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE PRICE PAID AND/OR DUE FROM CUSTOMER FOR ONLINE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL OED BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOST SAVINGS, PROFIT, REVENUE, LOST DATA, BUSINESS INTERRUPTION, USE, OTHER ECONOMIC ADVANTAGE OR ATTORNEYS FEES EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) INCURRED BY CUSTOMER, OR ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ONLINE SERVICES, INCLUDING BUT NOT LIMITED TO CUSTOMER'S USE OR INABILITY TO USE THE ONLINE SERVICES. FOR PURPOSES OF THIS SUBSECTION, "OED" INCLUDES ALL THIRD-PARTY CONTENT CREATORS, SUPPLIERS AND ANY DISTRIBUTOR, PUBLISHER OR RESELLER FROM WHOM CUSTOMER OBTAINED THE ONLINE SERVICES OR OTHER COMPONENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY TO CUSTOMER.

10. Term & Termination

(a) Generally.

OED shall, during the Term, selected by the Customer, provide Customer with Online Services in consideration for the Service Fee. This Agreement will automatically renew on the anniversary of the Online Services term start date, monthly, annually, or other selected service term, and shall continue in full force and effect until terminated by either party. Notwithstanding the foregoing, (i) OED may suspend or terminate this Agreement at any time without notice if Customer breaches any provision of it, and (ii) Customer may terminate this Agreement at any time if Customer does not agree to any amendment published under Subsection 1(b)("Changes to Agreement").

(b) Effect of Termination.

Termination of this Agreement, other than for cause, will terminate Customer's right to access or use the Online Services upon the next renewal. If Customer elects to terminate prior to the renewal date, Customer will retain access to services until the current Term ends. Termination will have no effect on payment of amounts due under Section 5 ("Price & Payment"), proprietary rights and obligations under Section 6 ("Certain Proprietary Rights"), indemnifications or disclaimers under Section 8 ("Warranties"), limitations under Section 9 ("Limitation of Remedies & Liabilities") or continuing assurances made under Section 12 ("Export Regulations"). No refunds will be given if Customer terminates early. Upon Termination for cause, Customer's right to access or use Data immediately ceases, and OED shall have no obligation to maintain any Data stored in Customer's account or to forward any data to Customer or any third party.

11. Disputes, Choice of Law

Except actions for certain injunctive relief authorized under Section 9 ("Limitation of Remedies & Liabilities"), which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator for nonbinding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court and shall include a written explanation of the decision. If the parties are still unable to reconcile their differences after the arbitrator issues its award, the dispute then may be taken to court by either party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH DESIGNATED STATE. ANY ACTION OR OTHER PROCEEDING BY CUSTOMER SHALL BE INITIATED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE, OR BE BARRED.

12. Export Regulations

(a) Export Control.

OED's Online Services rely on software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. Customer acknowledges and agrees that Online Services shall not be used, and none of the underlying information, software or technology may be transferred or otherwise exported or re-exported to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan or any other countries to which the United States and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Online Services, Customer agrees to comply strictly with all U.S. and European Union export laws and assumes sole responsibility for first obtaining licenses to export or re-export as may be required. This provision and the assurances made herein shall survive termination of this Agreement.

(b) International Use.

Online Services may use encryption technology that is subject to the licensing requirements under the U.S. Export Administration regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. OED makes no representation that the Online Services is appropriate or available for use outside the United States. Customer is solely responsible for compliance with all applicable laws for use of Online Services outside the United States, including export or import regulations of other countries.

13. Miscellaneous

This Agreement constitutes the entire and exclusive agreement between the parties with respect to this subject matter and supersedes all other communications, whether written or oral. This Agreement may be amended as provided in Section 1(b)("Changes to Agreement"). Any other amendment shall require a writing signed by OED, regardless of any course of conduct or trade practice between the parties. This document and Customer's electronic acceptance, shall be considered an original document with authenticated signature admissible into evidence unless the document's authenticity is genuinely placed in question. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.