These Terms provide that all disputes between you and The Learning Accelerator will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 15 below for the details regarding your agreement to arbitrate any disputes with The Learning Accelerator
1. ELIGIBILITY. You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization
2. PRIVACY; ADDITIONAL TERMS.
2.2 Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the "Additional Terms"), such as rules applicable to particular features or content on the Service, subject to Section 3 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
3. CHANGES TO THESE TERMS
3.1 The Learning Accelerator reserves the right to change these Terms on a going forward basis at any time. Please check these Terms periodically for changes.
3.2 In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of any such modifications. We may provide you notice through a pop-up or banner within the Service or by sending you a message informing you of the modified terms to any address you may have provided to us, or through other mechanisms. You agree that you will periodically checkwww.learningaccelerator.org for updates to these Terms and you will read the messages we may send you to inform you of any changes. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose
4. ACCOUNTS AND REGISTRATION. Most features of the Service do not require you to register for an account, however, to access some features of the service, you may be required to register for an account. If you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you may provide to us is accurate and that you will keep it accurate and up-to-date at all times. If you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1 You may download, print, copy, and distribute any pintable or downloadable guides, educational materials, or other blended learning resources on the Service that are owned by The Learning Accelerator (“Resources”) for noncommercial or educational purposes only, provided that you must retain all copyright and other proprietary notices contained therein. Permission to copy or distribute any materials that appear on the Service that are owned or copyrighted by others must be obtained from the third party that owns such content.
5.2 In addition to the license grant in 5.1, The Learning Accelerator may also indicate that certain materials are licensed to you under the Creative Commons Attribution 4.0 International License (the “CC BY 4.0 License”) which is available here, (“Licensed Content”). By downloading or accessing such Licensed Content, you agree to comply with all the terms of the CC BY 4.0 License. The CC BY 4.0 License requires attribution to The Learning Accelerator in association with your use of the Licensed Content. If you reproduce or share (including distribute, publicly perform or display, publish, communicate, import or otherwise make available) the Licensed Content, or if you produce, reproduce or share any adaptation or modification thereof, then you must:
(i) retain the following if it is supplied by The Learning Accelerator with the Licensed Content: (1) identification of the creator(s) of the Licensed Content and any others designated to receive attribution, in any reasonable manner requested by The Learning Accelerator; (2) a copyright notice; (3) a notice that refers to the CC BY 4.0 License; (4) a notice that refers to the disclaimer of warranties in the CC BY 4.0 License ; and (5) a URI or hyperlink to the Licensed Content to the extent reasonably practicable;
5.3 Except as specifically authorized in Sections 5.1 and 5.2, unless otherwise specified in writing, all content and materials, including visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) that are provided by The Learning Accelerator are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of The Learning Accelerator or our third-party licensors. Except as set forth in Sections 5.1 and 5.2, or as otherwise expressly authorized by The Learning Accelerator, you may not make use of the Materials. The Learning Accelerator reserves all rights to the Materials not granted expressly in these Terms. The Learning Accelerator trade names and logos may not be used without the express written permission of The Learning Accelerator.
5.4 You do not acquire any ownership rights by using the Service, downloading material from or uploading material to the Service.
5.5 All comments, feedback, suggestions, ideas, and other submissions ("Ideas") disclosed, submitted, or offered to The Learning Accelerator in connection with the use of the Service will be the exclusive property of The Learning Accelerator. You agree that unless otherwise prohibited by law, The Learning Accelerator may use, sell, exploit and disclose the Ideas in any manner, without restriction and without compensation to you
6. Restrictions. BY USING THE SERVICE YOU AGREE NOT TO:
6.1 use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
6.2 violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
6.3 interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
6.4 interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
6.5 perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
6.6 except as expressly permitted in Sections 5.1 or 5.2, sell or otherwise transfer the access granted herein or any Materials or any right or ability to view, access, or use any Materials;
6.7 post, upload, or submit any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; or
6.8 attempt to do any of the foregoing in this Section 6, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 6.
7. THIRD-PARTY SERVICES AND LINKED WEBSITES. The Learning Accelerator may provide tools through the Service that enable you to export information to third party services, including through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
8. TERMINATION OF USE; DISCONTINUATION AND MODIFICATION OF THE SERVICE. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, The Learning Accelerator, in its sole discretion, may suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service
9. INDEMNIFICATION. You agree to defend, indemnify and hold harmless The Learning Accelerator and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Learning Accelerator Entities”) from and against all claims and expenses, including attorneys' fees and costs, arising out of (i) your access to, use of, or alleged use of the Service (ii) your breach or alleged breach of any term, condition, obligation, representation or warranty in these Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
10. DISCLAIMERS; NO WARRANTIES. THE SERVICE AND ALL MATERIALS, RESOURCES AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (i) ANY WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT OR FITNESS FOR A PARTICULAR PURPOSE; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE LEARNING ACCELERATOR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS, RESOURCES OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE, RESOURCES OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE LEARNING ACCELERATOR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS, RESOURCES, OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS, RESOURCES OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL THE LEARNING ACCELERATOR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES IN ANY WAY WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE LEARNING ACCELERATOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE LEARNING ACCELERATOR ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO THE LEARNING ACCELERATOR ENTITIES FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. GOVERNING LAW AND VENUE. These Terms and all aspects of the Service will be governed by and construed in accordance with the internal laws of the United States and the State of California governing contracts entered into and to be fully performed in California (i.e., without regard to conflict of laws provisions) regardless of your location. You agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in San Francisco, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in San Francisco, California
13.1 The failure of The Learning Accelerator to require or enforce strict performance by you of any provision of these Terms or to exercise any right under them will not be construed as a waiver or relinquishment of The Learning Accelerator’s right to assert or rely upon any such provision or right in that or any other instance
13.2 You and The Learning Accelerator agree that if any portion of these Terms is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which will continue to be in full force and effect
14. MISCELLANEOUS. The Learning Accelerator operates and controls the Service from its offices in the United States. The Learning Accelerator makes no representation that the Service is appropriate or available in other locations. The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject The Learning Accelerator to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Neither the course of conduct between the parties nor trade practice will act to modify these Terms to any party at any time without any notice to you. These Terms contain the entire understanding of you and The Learning Accelerator, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. The section headings used herein are for convenience only and will not be given any legal import. You agree that these Terms will not be construed against The Learning Accelerator by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice. Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 1, and 5 through 15.
15. Dispute Resolution and Arbitration
15.1 Generally. In the interest of resolving disputes between you and The Learning Accelerator in the most expedient and cost effective manner, you and The Learning Accelerator agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE LEARNING ACCELERATOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Exceptions. Notwithstanding subsection 15.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
15.3 Arbitrator. Any arbitration between you and The Learning Accelerator will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting The Learning Accelerator.
15.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). The Learning Accelerator's address for Notice is: The Learning Accelerator, 10605 Farallone Drive, Cupertino, CA 95014. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or The Learning Accelerator may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or The Learning Accelerator shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, The Learning Accelerator shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by The Learning Accelerator in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
15.5 Fees. In the event that you commence arbitration in accordance with these Terms, The Learning Accelerator will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse The Learning Accelerator for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
15.6 No Class Actions. YOU AND THE LEARNING ACCELERATOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and The Learning Accelerator agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.7 Modifications. In the event that The Learning Accelerator makes any future change to this arbitration provision (other than a change to The Learning Accelerator's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to The Learning Accelerator's address for Notice, in which case your account with The Learning Accelerator shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
15.8 Enforceability. If Subsection 15.6 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 12 shall govern any action arising out of or related to these Terms.
17. Contact Information. The services hereunder are offered by The Learning Accelerator, located at 10605 Farallone Drive, Cupertino, CA 95014. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.