Welcome, and thank you for your interest in the CK-12 Foundation (“CK-12,” “we,” or “us”) and our websites at ck12.org and ck12info.org, along with our related or successor websites, networks, applications, mobile applications, content and other services provided by us (collectively, the “Platform”). These Terms of Use are a legally binding contract between you and CK-12 regarding your use of the Platform.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT” OR SIMILAR LANGUAGE, OR BY OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE PLATFORM, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”) AS WELL AS ANY OTHER TERMS AND CONDITIONS THAT MAY APPLY TO YOU, INCLUDING, CK-12’S DMCA NOTICE AND THE CK-12 CURRICULUM MATERIALS LICENSE. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU SHOULD NOT ACCESS OR USE, OR SHOULD PROMPTLY DISCONTINUE YOUR USE OF, THE PLATFORM. YOUR USE OF THE PLATFORM, AND CK-12’S PROVISION OF THE PLATFORM TO YOU, CONSTITUTES AN AGREEMENT BY CK-12 AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 16, YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND CK-12 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. 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. (SEE SECTION 16.)
LIMITATIONS OF LIABILITY. CK-12’s liability to you in connection with its provision of the Platform is limited as described in Sections 14 and 15.
1.CK-12 Platform Overview. CK-12 was founded with the mission to enable everyone to learn in his or her own way. To that end, CK-12 has developed a variety of content and related services in order to assist teachers and parents with teaching their students and children, and for students to aid them in learning. CK-12 makes such content and services available via the Platform.
2.Eligibility.
2.1User. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18-years old (or the age of consent in your jurisdiction if lower than 18-years) or have your parent or legal guardian’s consent to agree to these Terms (subject to the terms in Section 2.2); (b) have full power and authority to enter into these Terms; (c) you have not previously been suspended or removed from the Platform; (d) you are not located in, under the control of, or a national or resident of any country subject to sanctions by the United States; (e) you have not been placed on any U.S. Government list of prohibited or restricted parties; and (f) your registration and your use of the Platform is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
2.2Child User. If you are an individual who is less than 18 years of age (or the age of consent in your jurisdiction, if lower than 18-years) (“Child User”), you represent that your parent or legal guardian has reviewed and agreed to the Terms on your behalf.
If you are agreeing to these Terms or creating an account on the Platform for or on behalf of a Child User, you represent that you are either the parent or legal guardian of the Child User, or have been authorized by the parent or legal guardian of the Child User to accept these Terms on their behalf. By providing consent on behalf of a Child User to agree to these Terms, you agree to be responsible for educating your Child User on responsible use of the Platform and for monitoring and managing your Child User’s access to the Platform. You are responsible for your Child User’s actions and use of the Platform. CK-12 may, but is not obligated to, verify the identity of any user, including to verify that an individual consenting to the Terms on behalf of a Child User, is, or is authorized by, such Child User’s actual parent or legal guardian.
2.3Educational Institution. If you represent a school district or other educational institution that is enrolling its students on to the Platform, you hereby represent and warrant that you have the authority to accept these Terms on behalf of your students or have a separate agreement with CK-12 that accepts similar terms on behalf of your student users.
3.Accounts and Registration. To access some features of the Platform, you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. CK-12 reserves all rights to take legal action against anyone who misrepresents information about their identity. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@ck12.org. We may disable any username, password, account or other identifier at any time, in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
4.Licenses
4.1Platform License. Subject to your complete and ongoing compliance with these Terms, including Section 2.2 (Child User), as applicable, and subject to Section 7 below, CK-12 grants you, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Platform to obtain information and educational materials solely as follows:
(a)If you are a student, for your own education;
(b)If you are a parent or guardian, to educate your children or wards;
(c)If you are a teacher, non-profit educational institution (including schools) or school district, to educate your students; and
(d)If you are an individual tutor, to provide tutoring services to students provided that (1) you are not employed by a third party to provide tutoring services on their behalf, and (2) you provide feedback to CK-12 regarding the Curriculum Materials and/or Platform to improve student outcomes at feedback@ck12.org.
collectively, (“Educational Purposes”).
4.2Prohibited Use. You may not access or use the Platform or any CK-12 Curriculum Materials for any purposes other than for Educational Purposes. This includes, by way of example and not limitation: (a) for any commercial purposes (unless you are an individual tutor not employed by a third party for such tutoring purposes); (b) in order to build or train artificial intelligence or machine learning algorithms or models; (c) if you are an aggregator of content, to obtain educational materials to distribute through your own online or offline services; or (d) if you are a for-profit educational institution or multi-tutor tutoring business, as part of your educational offerings, whether such offerings are for free or for a fee. If you wish to use or distribute the CK-12 Curriculum Materials for non-Educational Purposes, you must obtain the express written permission of CK-12. To request permission, please contact CK-12 Foundation at legal@ck12.org.
4.3License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law or as otherwise permitted herein, you may not: (a) reproduce or distribute the Platform; (b) publicly display or publicly perform the platform except as necessary in connection with Educational Purposes; or (c) make modifications to the Platform. Further, you will not modify, reverse-engineer, or de-compile the Platform in any manner through current or future available technologies. You will not access the Platform with the intent to develop or market a competing service, or to enable a third party to do so.
4.4Licensed Photos. Certain photos, images or other Materials (as defined in Section 5) available on or through the Platform have been licensed by CK-12 from Shutterstock.com, Getty Images, or other commercial stock photo or image agencies (each a “Licensed Stock Photo”). You are allowed to retain a copy of a Licensed Stock Photo for your personal, non-commercial use, as specified in this Section 4. Notwithstanding anything to the contrary herein and subject to Section 4.1 of these Terms, you may not: (a) modify, alter, adapt or otherwise create any derivative work of a Licensed Stock Photo, and (b) you may not distribute, transmit, or disseminate a Licensed Stock Photo, or any copy or derivative work thereof, to any third party. Further, you may not sublicense, assign, or make available for resale any printed copy of a Licensed Stock Photo provided by Shutterstock.com or any Materials, CK-12 Curriculum Materials, or User Content containing a Licensed Stock Photo provided by Shutterstock.com.
4.5Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant CK-12 an unrestricted, perpetual, irrevocable, non-exclusive, worldwide, fully-paid, royalty-free right to exploit the Feedback in any manner or medium, whether now known or hereafter developed, and for any purpose, including to improve the Platform and create other products and services, in CK-12’s sole discretion. CK-12 is not obligated to provide you with any compensation or attribution for any Feedback.
4.6Scraping Platform Content. The content available on the Platform, including but not limited to text, data, audio, images, and other materials, is protected by copyright and other intellectual property laws. You are strictly prohibited from scraping or otherwise collecting any content from the Platform for the purpose of training, developing, or improving any machine learning or artificial intelligence models, including but not limited to large language models, without explicit written permission from CK-12.
5.Ownership; Proprietary Rights. The Platform is owned and operated by CK-12. The audio, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and associated know-how, and trademarks, service marks, logos, trade dress, service marks or trade names that appear on the Platform or all other elements of the Platform (collectively “Materials”), are owned by CK-12, its licensors, or other providers and are protected by United States and international copyright, trademark, patent, trade secret, and intellectual property and other laws. Except as expressly authorized by CK-12, you may not make use of the Materials. CK-12 retains all rights, title, and interest in and to the Materials. These Terms contain no implied licenses.
6.CK-12 Curriculum Materials. Notwithstanding the rights granted in Section 4.1, unless otherwise agreed by CK-12 in writing, your use of any CK-12 curriculum materials, course materials, textbooks, teaching guides, study guides, tests, practice materials, or other similar materials made available to you by CK-12 whether or not via the Platform (“CK-12 Curriculum Materials”), will be subject to the terms and conditions of the CK-12 Curriculum Materials License (“CK-12 Curriculum Materials License”) which is hereby incorporated by reference into these Terms.
7.Third-Party Terms
7.1Third-Party Services and Linked Websites. CK-12 may provide tools through the Platform that enable you to export information, including User Content (defined below), to third-party services. By using one of these tools, you agree that CK-12 may transfer that information to the applicable third-party service. Third-party services may not be under CK-12’s control, and, to the fullest extent permitted by law, CK-12 is not assuming responsibility for any third-party service’s use of your exported information. The Platform may also contain links to third-party websites. Linked websites are not under CK-12’s control, and CK-12 is not responsible for their content and the acts or omissions of the owners or controllers of such third-party websites. CK-12 may permit you to register for the Platform using, or connect your Platform account with, certain third party accounts (including social networking or school district accounts) (the “Connected Accounts”). By registering Connected Accounts, you agree that CK-12 may access information from your Connected Account as necessary to provide functionality on the Platform. CK-12 shall not have any responsibility or liability for the content or information in such Connected Accounts or the acts or omissions of the providers of the Connected Accounts.
7.2Third-Party Software. The Platform may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8.User Content
8.1User Content Generally. Certain features of the Platform may permit users to input information or upload content to the Platform, including messages, reviews, photos, videos, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Platform. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Platform. You hereby agree to not include any proprietary or personal information in any User Content.
8.2Limited License Grant to CK-12. By providing User Content to or via the Platform, you grant CK-12 a perpetual, worldwide, non-exclusive, irrevocable, royalty-free, fully paid, and transferable right and license (with the right to sublicense) to host, store, transfer, publicly display and publicly perform (in each instance on a through to the user or viewer basis), reproduce, modify, distribute, or otherwise use your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3Limited License Grant to Other Users. By providing User Content to or via the Platform to other users of the Platform, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Platform.
8.4User Content Representations and Warranties. CK-12 disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Platform. By providing User Content via the Platform, you affirm, represent, and warrant to us that:
(a)you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize CK-12 and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by CK-12, the Platform, and these Terms;
(b)your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, bully, incite violence, or invade the right of privacy, publicity or other property rights of any other person; (iii) cause CK-12 to violate any law or regulation; (iv) contain advertising, promotional materials or links, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, or (v) require CK-12 to obtain any other licenses, permissions, authorizations, or consents from or pay any royalties or other amounts to any third parties; and
(c)your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. CK-12 may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Platform, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against CK-12 with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, CK-12 does not permit copyright-infringing activities on the Platform.
8.6Monitoring Content. CK-12 does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Platform by its users. You acknowledge and agree that CK-12 reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Platform for operational and other purposes. If at any time CK-12 chooses to monitor the foregoing content, CK-12 still assumes no responsibility or liability for such content or any loss or damage incurred as a result of the use of such content. During monitoring, personal information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below).
8.7AI Training. You hereby agree and acknowledge that pursuant to the license granted under Section 8.2, CK-12 may utilize User Content to train, optimize, ground or otherwise enhance the AI Features (as defined in Section 14.4 below). Notwithstanding Section 8.1, any “vectorized” data, vector relationship related information, or other analytical information, that is developed using the User Content and used for training, fine-tuning, grounding, or inference purposes for the AI Features, is deemed to be an inherent part of the AI Features, and as between the parties is owned by CK-12.
9.Communications. We may send you emails concerning our products and services. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10.Prohibited Conduct. BY USING THE PLATFORM, YOU AGREE NOT TO:
(a)use the Platform for any illegal purpose or in violation of any local, state, national, or international law;
(b)harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Platform;
(c)violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
(d)interfere with security-related features of the Platform, including 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 any portion of the Platform except to the extent that the activity is expressly permitted by applicable law;
(e)interfere with the operation of the Platform or any user’s enjoyment of the Platform, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Platform; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform;
(f)perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Platform account without permission, or falsifying your age or date of birth;
(g)sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 5) or any right or ability to view, access, or use any Materials;
(h)access or use the Platform or any portion thereof via automated or partially automated means (including via scraping or robots) in order to collect information (including CK-12 Curriculum Materials) from or relating to the Platform, CK-12 or any other website owned or operated by CK-12;
(i)access the Platform if your right to access the Platform has previously been terminated; or
(j)attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11.Copyright and Intellectual Property Protection. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). Please review our DMCA Notice (the “DMCA Notice”). The DMCA Notice is incorporated by this reference into, and made a part of, these Terms.
12.Term, Termination, and Modification of the Platform
12.1Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Platform, and ending when terminated as described in Section 12.2.
12.2Termination. If you violate any provision of these Terms, your authorization to access the Platform and these Terms automatically terminates. In addition, CK-12 may, at its sole discretion, terminate these Terms or your account on the Platform, or suspend or terminate your access to the Platform, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@ck12.org.
12.3Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Platform; (b) you will no longer be authorized to access your account or the Platform; (c) you must pay CK-12 any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 4.2, 4.3, 4.4, 4.5, 4.6, 5, 8.2, 8.3, 8.7, 12.3, 13, 14, 15, 16 and 17 will survive.
12.4Modification of the Platform. Subject to Section 17.2, CK-12 reserves the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, with reasonable notice to you. CK-12 will have no liability for any change to the Platform or any suspension or termination of your access to or use of the Platform.
13.Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Platform, and you will defend, indemnify, and hold harmless CK-12, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “CK-12 Entities”) from and against any claim, and related liability, damage, loss, and expense, including attorneys’ fees and costs incurred by any of the CK-12 Entities, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Platform; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) CK-12’s use of your Feedback or User Content; (e) your use of any AI Features or any AI Output (as defined in Section 14.4); or (f) any dispute or issue 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 (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14.Disclaimers; No Warranties
14.1THE PLATFORM AND ALL MATERIALS AND CONTENT (INCLUDING AI OUTPUT) AVAILABLE THROUGH THE PLATFORM AND ANY STUDENT PERFORMANCE ASSESSMENTS MADE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CK-12 DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM AND ALL MATERIALS, CONTENT, AND ASSESSMENTS MADE AVAILABLE THROUGH THE PLATFORM, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CK-12 DOES NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CK-12 DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
14.2NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM OR CK-12 ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY OF THE CK-12 ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PLATFORM AND YOUR DEALING WITH ANY OTHER PLATFORM USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE PLATFORM AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR ANY LOSS OF DATA, INCLUDING USER CONTENT. YOU ACKNOWLEDGE THAT THE PLATFORM AND MATERIALS ARE PROVIDED AS AN EDUCATIONAL AID AND ARE NOT A SUBSTITUTE FOR ANY STRUCTURED EDUCATIONAL SYSTEM OR THE PROFESSIONAL JUDGEMENT OF TRAINED EDUCATORS IN TRAINING STUDENTS AND IN ASSESSING STUDENT PERFORMANCE.
14.3THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 14 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. CK-12 does not disclaim any warranty or other right that CK-12 is prohibited from disclaiming under applicable law.
14.4AI Output. Certain portions of the Platform contain artificial intelligence features (“AI Features”) that perform actions or generate content (collectively, “AI Output”). The implementation of AI Features on the Platform is still being, and will continue to be, developed and tested, and may not become fully developed or generally available. The laws and regulations governing artificial intelligence and related technology are uncertain and evolving, and CK-12’s ability to use artificial intelligence may be adversely impacted by any future change in such laws. CK-12 may change, add, or remove specific AI Features, elements or portions thereof, at any time without any liability to you. You also acknowledge and agree that AI Output may not be protectable under copyright, intellectual property, or other laws. AI Output may contain errors, incorrect information, and have other bugs. CK-12 make no warranties or representations, express or implied, that AI Output is protectable under any law, is accurate, or is error-free. You are solely responsible for any User Content that you input into the Platform or otherwise provide to use the AI Features or to generate the AI Output.
You agree and acknowledge that given the current state of technology, AI Features may make mistakes and you are responsible for reviewing and double-checking AI Outputs with reputable sources to confirm that such AI Outputs are accurate, lawful and otherwise appropriate and permissible before relying on them.
14.5Publication. You further agree and acknowledge that the AI Features are not intended to generate content for publication or to be shared as your original work. To avoid any claims related to misappropriation or plagiarism, you should acknowledge the role of artificial intelligence in creating any AI Outputs or derivatives thereof, when you share with or provide such materials to any third party.
15.Limitation of Liability
15.1TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CK-12 ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS), OR ANY LOSS OF BUSINESS, REVENUE, PROFITS, OR ANTICIPATED SAVINGS ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM OR ANY MATERIALS OR CONTENT ON THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CK-12 ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
15.2TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE CK-12 ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO CK-12 FOR ACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM AND (b) US$100.
15.3EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. 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 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16.Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and CK-12 in connection with these Terms (“Disputes”) in the most expedient and cost-effective manner, and except as described in Section 16.2, 16.4, and 16.10, you and CK-12 agree that every Dispute will be resolved by binding arbitration. Arbitration is less formal 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. This agreement to arbitrate disputes includes 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 a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CK-12 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.
16.2Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms by sending a letter to CK-12, Attention: Legal Department – Arbitration Opt-Out, 4300 Bohannon Dr., Suite 200, Menlo Park, CA 94025 that specifies: your full legal name, the email address associated with your account on the Platform, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once CK-12 receives your Opt-Out Notice, this Section 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.3. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
16.4Arbitrator. Any arbitration between you and CK-12 will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. 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 CK-12. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.5Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). CK-12’s address for Notice is: CK-12 Foundation, Attention: Legal Department, 4300 Bohannon Dr., Suite 200, Menlo Park, CA 94025. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or CK-12 may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or CK-12 must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
16.6Fees. The payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) 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 that case, you agree to reimburse CK-12 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 must 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.
16.7No Class Actions. YOU AND CK-12 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 CK-12 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.
16.8Modifications to this Arbitration Provision. If CK-12 makes any future change to this arbitration provision, other than a change to CK-12’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to CK-12’s address for Notice of Arbitration, in which case your account with CK-12 will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.9Enforceability. If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if CK-12 receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.3 will govern any action arising out of or related to these Terms.
16.10Coordinated Arbitration Filings. Notwithstanding anything to the contrary in Section 16, if 25 or more Disputes are initiated with the arbitration provider that raise similar claims, and counsel for the claimants are the same or coordinated, these will be considered “Coordinated Proceedings.” CK-12 will pay only its share of arbitration fees for Coordinated Proceedings, and claimants will be responsible for their share of those fees as set by the AAA Rules and AAA’s fee schedule for mass arbitrations. Applicable statutes of limitations will be tolled for all claimants who have provided compliant Notices of Arbitration to CK-12, but demands for arbitration in Coordinated Proceedings shall only be filed with the arbitration provider as permitted by the bellwether process set forth below, and CK-12 shall not be required to pay any fees associated with cases that these Terms do not allow to be filed.
Once all Notices of Arbitration have been provided to CK-12 for Coordinated Proceedings, claimants’ and CK-12’s counsel shall confer in good faith regarding the number of cases that should proceed as bellwethers, to allow each side to test the merits of its arguments, before the remainder of claims may be filed with AAA. Any number chosen as the bellwethers must be an even number so as to allow each side to designate its half of the cases selected for bellwether trials. If counsel for claimants and for CK-12 do not agree on the number of bellwethers, the number shall be chosen by the arbitrator. Once the number of bellwethers is fixed, each side shall select half that number from among the claimants who have provided compliant Notices of Arbitration, and only those chosen claims may be filed with the arbitrator. You agree that if your case is among Coordinated Proceedings filed against CK-12, resolution of your personal claim might be delayed by this bellwether process. Nothing in this paragraph shall be construed to delay the resolution of uncoordinated Disputes based on similar claims to Coordinated Proceedings filed against CK-12. A single arbitrator shall preside over each Coordinated Proceeding chosen for a bellwether proceeding, and only one Coordinated Proceeding may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. Once all bellwether trials have concluded (or sooner if the parties’ respective counsel agree), the parties must make a good-faith effort to resolve all remaining cases that were not chosen for a bellwether proceeding via a single mediation of all remaining cases. Each side shall pay half the applicable mediation fee. Counsel for claimants in the Coordinated Proceedings and for CK-12 must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If the parties’ respective counsel cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. If the mediation does not yield a global resolution, claimants in Coordinated Proceedings who provided compliant Notices of Arbitration but whose claims were not resolved in bellwether proceedings shall no longer have the right to arbitrate their Dispute. Instead, outstanding claims from such cases may be filed only in Santa Clara County, California, and you consent to venue such cases exclusively in these courts. To the extent you are asserting the same claims as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Proceedings who provided compliant Notices of Arbitration, and CK-12 reserves the right to contest class certification at any stage of litigation and on any available basis. A court shall have authority to enforce this bellwether process and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
17.Miscellaneous
17.1General Terms. These Terms, together with the DMCA Notice, the CK-12 Curriculum Materials License, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and CK-12 regarding your use of the Platform. You may not assign or transfer these Terms or your rights under these Terms, 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 or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
17.2Modification of these Terms or the Platform. We endeavor to provide reasonable written notice to contracted school districts of any material change to these Terms, with a goal to provide 30 days’ notice prior to any such material changes. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Platform. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in these Terms, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
17.3Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and CK-12 submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Platform from our offices in California, and we make no representation that Materials included in the Platform are appropriate or available for use in other locations.
17.4Privacy Policy. Please read the CK-12 Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information.
17.5Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from the Platform (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.6Consent to Electronic Communications. By using the Platform, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
17.7Contact Information. The Platform is offered by CK-12 Foundation, located at 4300 Bohannon Dr., Suite 200, Menlo Park, CA 94025. You may contact us by sending correspondence to that address or by emailing us at legal@ck12.org.
17.8Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform.
17.9No Support. We are under no obligation to provide support for the Platform. In instances where we may offer support, the support will be subject to published policies.
17.10International Use. We make no representation that the Platform is appropriate or available for use outside of the United States. Access to the Platform from countries or territories or by individuals where such access is illegal is prohibited.
18.Notice Regarding Mobile Application. This Section 18 only applies to the extent you are using the Platform through our mobile application.
18.1Apple. You acknowledge that these Terms are between you and CK-12 only, not with Apple Inc. (“Apple”), and Apple is not responsible for the service or the content available on the Platform. Apple has no obligation to furnish any maintenance and support services with respect to the Platform. If the service on the Platform fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the service available on the Platform. Apple is not responsible for addressing any claims by you or any third party relating to the Platform or your possession and/or use of the Platform, including: (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Platform and/or your possession and use of the Platform infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Platform. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
18.2Google. If you access, download or otherwise acquire the Platform mobile application from the Google Play Store: (a) you acknowledge that these Terms is between you and CK-12 only, and not with Google, Inc. (“Google”); (b) your use of the application must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the application; (d) CK-12 and not Google, is solely responsible for the application; (e) Google has no obligation or liability to you with respect to the application or these Terms; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to the application.