Last updated: October 7, 2016
NOTE: SECTION 5 (Choice of Law; Dispute Resolution; No Class Actions) BELOW CONTAINS A BINDING ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER, THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US.
Users of Our Sites and Software.
Certain of our Sites host our ST Math® instructional Software, which has been developed for use by students from pre-kindergarten through high school (“Student(s)”), for the improvement of math-related skills and achievement. Students are provided access to our Software and Sites through their schools and school districts (collectively, “Local Educational Agencies” or “LEAs”), who utilize these services to assess their Students’ progress and supplement their mathematics curriculum.
If you are a Student, you may only use the Sites and Software if you are at least 13 years of age, or if you are otherwise using the Sites and/or Software with the consent and under the supervision of your parent, legal guardian, or teacher / school representative.
LEAs’ Obligations for Students Under 13.
Acceptable Use Policies.
You agree to use the Site in accordance with all applicable laws. Because MIND is a nonprofit, tax-exempt organization, you agree that you will not use the Site for organized partisan political activities. You further agree that you will not post, upload, transmit, distribute, store, create or otherwise publish through any Site, or through any other MIND computing resources:
You also may not:
harvest or otherwise collect personal information about users, including e-mail addresses, without their consent
use any robot, spider, crawler, scraper, bots or other automated means to access or use the Sites
introduce or attempt to introduce software viruses, Trojan horses, worms, backdoors or any other computer codes, files, or programming instruction or set of instructions that are designed or intended to disrupt, disable, harm, interfere or otherwise adversely affect any computer programs, software, firmware, hardware, mobile devices, wireless devices, computer systems, data or operations.
License from Us.
Subject to your compliance with the Terms, MIND grants you a personal, non- exclusive, non-transferable license to (a) if you are a Student, or parent or legal guardian of a Student, using the App, download, install, and use the App, if applicable, on a mobile device; and (b) access and use the Site, including the contents and materials on the Sites, including reports generated from the Software, for your internal personal purposes, and not for commercial resale, sublicensing, time-sharing or service bureau usage. You may access the Site only for your own personal, non-commercial uses described herein. You may not otherwise copy, reproduce, retransmit, distribute, publish, commercially exploit or otherwise transfer any materials on the Site, including the Software. Any resale, redistribution, or publication of the Software or other contents on the Sites, or any modifications or derivative works, is prohibited. The burden of determining that use of any information, software or any other content on the Site is permissible rests with you.
You may use the Site for legal purposes only. The Sites may contain content submitted by you or other users ("User Provided Materials"). MIND merely hosts and provides tools to post and share User Provided Materials, and you agree and acknowledge that we have no liability with regard to such material. Furthermore, you agree that, if a third party claims that any User Provided Materials you have contributed to the Site is unlawful or breaches any intellectual property, privacy, or other rights of third parties, you will bear the sole burden of establishing that the material complies with all applicable laws and does not infringe any third party rights, and you will bear the sole and exclusive liability for any breach of applicable laws or any third party rights. MIND has the right to remove material from the Site, block access, or take other action with respect to the User Provided Material in its sole discretion.
Your License Grant to MIND.
By submitting User Provided Materials on any of the Sites, you hereby grant MIND a perpetual, irrevocable, transferable, sublicenseable, worldwide, royalty-free, license to host, store, copy, publish, display, distribute, provide access to, modify or create derivative works of, and otherwise use or sell your User Provided Materials, in any form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered.
Feedback that You Provide.
If you provide any ideas, suggestions, documents, and/or proposals (“Feedback") to us through the Sites, you acknowledge and agree that: (a) your Feedback does not contain confidential or proprietary information or yours or any third parties; (b) such Feedback does not infringe the intellectual property rights of any third parties; (c) such Feedback is automatically assigned to MIND, to the maximum extent that such assignment is permissible under applicable laws, and otherwise, you hereby grant MIND a perpetual, irrevocable, worldwide, fully-paid up, royalty free, assignable, sublicensable license to use, reproduce, display, create derivative works of, make, sell, have made, have sold, import, export or otherwise exploit any such Feedback; and (d) you are not entitled to any compensation or reimbursement from MIND for such Feedback.
MIND’s Site may include hyperlinks to websites maintained or controlled by others. MIND is not responsible for and does not routinely screen, approve, review or endorse the contents of or use of any of the products or services that may be offered at these websites.
Governing Law; Arbitration.
The Site is hosted by MIND on computing resources located in Orange County, California. You agree that any dispute arising out of or relating to these Terms or any content posted to a Site will be governed by the laws of the State of California, excluding any conflicts of law provisions to the contrary, as well as all applicable federal laws, including the Federal Arbitration Act. Except as provided in this paragraph with respect to requests for injunctive relief, any controversy, claim or dispute arising out of these Terms or your use of the Site (“Claims”)) shall be resolved by final and binding arbitration. Such arbitration shall take place in Orange County, California, and shall be administered by a single arbitrator pursuant to the JAMS Comprehensive Arbitration Rules and Procedures. The arbitrator shall be empowered to award any form of individual relief, including injunctive relief. In order to keep costs down for both you and us, hearings may, at our request, be conducted telephonically or entirely upon submissions.
Causes of Action.
YOU AND MIND RESEARCH INSTITUTE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Class Action Waiver.
In addition to the above, you waive the right to bring any Claim as a class action, consolidated, multi-district or collective action, or private attorney general action. You also agree not to participate in any class action, consolidated, multi-district or collective action, or private attorney general action regarding any Claim. If we prevail in any arbitration or proceeding to enforce this Agreement or arising out of your access to or use of the Site, we shall be entitled to recover, in addition to all other available legal and equitable relief, its legal costs, including attorneys’ fees.
Third Party Beneficiaries.
You acknowledge and agree that each of our partners and customers, which includes LEAs with Students hereunder, is participating on the Site in reliance of its and your rights, remedies, and obligations under these Terms, including those of this paragraph, and each such entity will be a third-party beneficiary of this Section 5 (Choice of Law; Dispute Resolution; No Class Actions).
MIND does not warrant, and hereby disclaims any warranties, either express or implied, with respect to the accuracy, adequacy or completeness of any Site, information obtained from the Site, or link to a Site. MIND does not warrant that Site will operate in an uninterrupted or error-free manner or that the Site is free of viruses or other harmful components. Use of information obtained from or through these Sites is at your own risk. MIND makes no representation regarding your ability to transmit and receive information from or through the Site and you agree and acknowledge that your ability to access the Site may be impaired. MIND disclaims any and all liability resulting from or related to such events. THIS SITE, THE SOFTWARE AND ANY INFORMATION, PRODUCTS OR SERVICES HEREIN ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE OF A PARTICULAR PURPOSE, OR NON- INFRINGEMENT.
Limitation of Liability.
YOU AGREE THAT MIND WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES, EITHER ACTUAL OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THESE TERMS, OR TO YOUR (OR ANY THIRD PARTY’S) USE OR INABILITY TO USE THE SITE, OR TO YOUR PLACEMENT OF CONTENT ON THE SITE, OR TO YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH THE SITE. IN PARTICULAR, MIND WILL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR DEFAMATION, ERRORS, LOSS OF DATA, OR INTERRUPTION IN AVAILABILITY OF DATA), ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OR INABILITY TO USE A SITE, OR ANY PURCHASES ON THIS SITE, OR YOUR PLACEMENT OF CONTENT ON A SITE, OR TO YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH A SITE, WHETHER BASED IN CONTRACT, TORT, STATUTORY OR OTHER LAW, EXCEPT ONLY IN THE CASE OF DEATH OR PERSONAL INJURY WHERE AND ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. OUR AGGREGATE LIABILITY ARISING OUT THE SITES OR SERVICES WILL NOT EXCEED THE GREATER OF FIVE DOLLARS ($5) OR THE AMOUNT YOU HAVE PAID US IN THE PAST MONTH. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE MIND RESEARCH INSTITUTE AND ITS PARNTERS, CUSTOMERS, SPONSORS, LICENSORS, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND ALL OTHER RELATED PERSONS OR ENTITIES, FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, SUITS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF ANY OF THE SITES OR SOFTWARE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR” (OR ANY EQUIVALENT STATUTORY PROVISION WITH A SIMILAR IMPORT OR INTENT). IF YOU ARE A RESIDENT OF A STATE OTHER THAN CALIFORNIA, YOU EXPLICITLY WAIVE THE TERMS AND PROTECTIONS OF ANY STATUTE OF YOUR OWN STATE THAT HAS A SIMILAR IMPORT OR INTENT.
The logo, name and all graphics on the Site of MIND and its affiliates, are trademarks of MIND, or its affiliates. Use, reproduction, copying or redistribution of trademarks, without the written permission of MIND or its affiliates is prohibited. All other trademarks or service marks appearing on the Site are the marks of their respective owners. Unless otherwise noted, all content on the Site is copyrighted by MIND.
If you are a school or LEA, you hereby designate MIND Research Institute as an “other school official” under The Family Educational Rights and Privacy Act, 20 U.S.C. §1232g (“FERPA”), that has a “legitimate educational interest” in using and accessing Student Records disclosed to us for use of the Sites or Software, and you hereby represent, warrant, and covenant that (a) you have obtained all consents necessary in connection with disclosing any Student Records directly or indirectly to us, and (b) such disclosures have not and will not violate FERPA.
You agree to indemnify and hold MIND, its subsidiaries, affiliates, partners, customers, sponsors, service providers, officers, employees, and agents harmless from any claims, losses, costs or damages, including legal fees, resulting from your violation of these Terms, your use of the Site or your placement of any link, content or other information on the Site, and your violation of the rights of any third party, and to fully cooperate in MIND’s defense against any such claims.
If you use this site, you are responsible for maintaining the confidentiality of your account and password, if any, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You agree to immediately notify us of any unauthorized use of either your password(s) or account(s) or any other breach of security. MIND is not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations. You further agree that you will not permit others, including, without limitation, those whose accounts have been terminated, to access our Sites using your account(s) or user ID. If you are under 18, you may purchase products or services only through a parent or guardian. You agree that billing and registration information you provide on the Site will be accurate and complete. MIND and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
Termination by LEA.
An LEA may terminate use of the Sites or Software by provision of written notice of termination to us, pursuant to the notice provisions set forth in Section 11 (General) below. We will terminate use and storage of any Student Records received from the LEA following written notice of termination, unless we have received consent directly from such Student, if aged 13 or above, or the Student’s parent or legal guardian otherwise, to store such Student Records.
Termination or Suspension by Us.
We may suspend or terminate your access to all or any part of the Sites or Services, or block or disable your access or use of the Apps, at any time, with or without cause, with or without notice, effective immediately. Without limiting the foregoing, we may suspend or terminate your access to all or any part of the Sites or Services, or block or disable your access or use of the Apps if (a) we believe, in our sole discretion that you are in breach of this Agreement or are acting in a manner that shows that you do not intend to, or are unable to, comply with the Terms and Conditions; (b) we are required to do so by law (for example, where the provision of Services to you is, or becomes, unlawful); (c) we elect to no longer provide the Sites or Services to users in the state or country in which you are resident or from which you use the Sites or Services; (d) we believe that your use of the Sites or Services may infringe or violate the rights of a third party or subject us or one of our affiliates to civil or criminal liability or reputational harm; or (e) we believe such suspension or termination is necessary or appropriate to avoid harm to the Sites, Services, or persons; in each such a case, no portion of your subscription payment will be refunded. If we suspend or terminate your access for no reason or for a reason other than those set forth in the preceding sentence, we will refund to you any unused portion of your subscription payment, if any, which will be your sole and exclusive remedy upon such suspension or termination. Termination may result, in our sole discretion, in the forfeiture and destruction of all information associated with your account. All Terms and Conditions that by their nature should survive termination of this Agreement, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, shall so survive. If your account is cancelled or terminated for any reason, you will no longer be able to access information under your account.
Mobile and Internet Usage.
By using the Sites from your mobile phone, you understand that your wireless or internet services provider’s standard SMS, MMS and/or data rates will apply to your use of the Sites. By using the Sites, you agree to be responsible for any fees that are incurred as a result of your use of the Sites. You hereby represent and warrant that you are the owner or authorized user of any mobile or other wireless device that you use to access the Services, and that you are authorized to approve all associated SMS, MMS and data charges.
Certain Third Party Terms.
All notices, demands and other communications hereunder shall be in writing and shall be effective upon receipt, provided that we may provide notice to you by posting announcements on any of the Sites or sending an e-mail to you at the e-mail address that is currently associated with your account if you have one. Any such e-mail notice to you will be deemed given on the day it is sent. Except as specified in the next sentence, all notices to us of a legal nature shall be in writing and shall be sent by certified first-class U.S. mail, return receipt requested, to:
MIND Research Institute
5281 California Avenue, Suite 300
Irvine, CA 92617
Tel: (949) 345-8700
Toll Free: (888) 751-5443
Fax: (949) 572-2680
All notices regarding copyright or other intellectual property infringement issues shall be sent as described below under Section 12 (Copyright Complaints). If you have any questions about these Terms, then please contact us at the postal address set forth above.
Our Communications with You.
MIND respects the intellectual property rights of others. If you believe your copyright has been violated on a MIND Site or any content posted on such Sites, please contact the Controller at firstname.lastname@example.org or the U.S. Mail address above and provide the following information:
Upon our receipt of a takedown notice complying materially with all of these requirements, we will remove, or cause to be removed, the identified materials. The individual that had posted such materials will then have an opportunity to demand reposting. You will receive notice of such if the individual properly requests reposting. Repeat offending websites, contributors (if any), or account holders (if any) will be terminated.