These Terms of Service (these “Terms”) are entered into by Smartest Edu, Inc. d/b/a Formative (“Formative,” “we,” “our,” or “us”) and you as a user of Formative’s website and/or Formative’s online, cloud-based learning platform (collectively, the “Site”).  You acknowledge and agree that the following terms, conditions, guidelines, covenants, and notices set forth herein shall govern your access and use of the Site.

PLEASE READ THESE TERMS CAREFULLY BEFORE YOU BEGIN USING THIS SITE. BY ACCESSING OR USING THE SITE IN ANY WAY, INCLUDING WITHOUT LIMITATION, BROWSING THE SITE, USING ANY INFORMATION, PURCHASING OR RECEIVING ANY PRODUCTS OR SERVICES, AND/OR SUBMITTING ANY CONTENT OR PERSONAL INFORMATION VIA THE SITE, YOU AGREE TO AND ARE LEGALLY BOUND BY THESE TERMS, INCLUDING DISCLAIMERS OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, VENUE SELECTION, AND A CHOICE OF DELAWARE LAW, AND YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO OUR PRIVACY POLICY.

THESE TERMS INCLUDE A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SITE TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. THE ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION, AND A JURY WAIVER.

IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS, YOU MUST NOT USE THE SITE. YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD OR OLDER AND POSSESS THE LEGAL RIGHT AND ABILITY TO AGREE TO THESE TERMS.

ACKNOWLEDGEMENT:  YOU ACKNOWLEDGE (A) THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS AND (B) THAT THESE TERMS HAVE THE SAME FORCE AND EFFECT AS A SIGNED AGREEMENT.

1. Site Content; Reservation of Rights

The Site is for your internal business purposes or other personal, noncommercial use only. Except as otherwise provided by a third party, all trademarks, service marks, trade names, and logos (collectively, “Trademarks”) used and displayed on the Site are registered and unregistered Trademarks of Formative and/or its licensors. You acknowledge that the Trademarks used and displayed on the Site are and shall remain the sole property of Formative and/or our licensors. In addition, all page headers, custom graphics, button icons, and scripts are Trademarks and/or trade dress of Formative and/or its licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Formative and/or its licensors. The Site contains copyrighted material, Trademarks, trade dress, and other proprietary content, including but not limited to, text, software, applications, sound, photographs, images, logos, video, graphics, assessments, questions, documents, written posts and comments, interactive features, and other data and information generated, provided, or otherwise or made accessible on or through the Site, and including the entire selection, coordination, arrangement, and “look and feel” of the Site (collectively, the “Content”). Neither these Terms nor your use of the Site transfers any right, title, or interest in the Site or the Content to you. Formative and its third-party licensors retain all of our and their respective right, title, and interest to the Site and Content. Any rights not expressly granted herein are reserved. The misuse of the Trademarks displayed on the Site, or any other Content on the Site, is strictly prohibited.

Formative may use e-mail and text messages to communicate with you on a recurring basis. By providing your e-mail address and/or phone number, you consent and give permission to be contacted at such e-mail address and/or phone number by Formative for informational and/or marketing purposes. You understand that consent is not a condition of purchase. You certify that you have provided your own contact information. Message and data rates may apply. To opt-out of such communications, you may click the “unsubscribe” button in our email or reply STOP to our text message.

2. Account and Registration; Memberships; School Partnerships

n order to access certain features of the Site, you may be required to register for an account by entering your email and choosing a password (your “Account Credentials”). When you engage with or sign into the Site, in addition to your Account Credentials, you may be providing your name, phone number, and/or other contact information to Formative. You certify that you have provided your own contact information and that the information you have provided is accurate. Upon registration and the submission of such contact information, you consent and give permission to be contacted at such e-mail address, phone number, or other method by Formative and its partners.  

You are solely responsible for protecting and maintaining the secrecy of your Account Credentials. You shall not allow another person to use your Account Credentials to access the Site. Formative will not be responsible or liable for any loss or damage that results from your failure to comply with this security obligation. You are solely responsible for any and all activities or actions that occur under your account, whether or not you have authorized such activities or actions. You agree to immediately notify Formative of any unauthorized use of your Account Credentials.

School partnerships are entered into between Formative and either a school or a school district that has legal authorization to share teacher and student data. Small teams may self-serve directly on the Site, but a school partnership will require written permissions and guarantees from an authorized agent of the Local Education Agency (“LEA”). If a partner school requests Formative to integrate with your Student Information System (“SIS”), Learning Management System (“LMS”), or other system in order to automatically create accounts, you may receive an email to obtain access to the account authorized by an administrator and created by Formative. If Formative becomes aware that the signatory to a school partnership did not have authority in the LEA to sign the agreement between Formative and such school, Formative reserves the right to terminate such school partnership and all related accounts.  

The Site is designed for use by schools, school districts, educators and student users.  If you are an educator, you warrant and represent that you are authorized to use the Site with your students on behalf of your school and/or school district.  If you are a school, a school district or an educator using individual accounts on behalf of your students or providing students with access to the Site, you warrant and represent that you are authorized to act on a parents’ or legal guardians’ behalf in providing such access and any student information to Formative under applicable law or that you have obtained verifiable consent from parents or legal guardians of your students in accordance to the laws governing your jurisdiction.  To the extent that any student data or personal information is being made available to Formative or to any third party (including other students), you represent and warrant that you have given all applicable notices and have received all applicable consents and have not received any effective objections thereto.  Minor students are only authorized to use the Site to the extent authorized by you, to the extent permitted by applicable law, or to the extent permitted by a parent or legal guardian. Formative reserves the right to provide access to a student’s account to the student’s parents, legal guardian, or other authorized adult or educational institution, upon such authorized adult’s request.

When you register for an account on the Site, you will have the option to choose from several types of membership plans, and Formative will make the online, cloud-based learning platform portion of the Site available to you in accordance with the type of membership plan you select. Upon registration and payment of the applicable fees for such membership plan, you will receive an email from Formative confirming registration of your selected membership plan and specifying the terms governing such membership plan, including the duration of your membership and fees due. Your use of the Site during the term of your membership plan shall be subject to these Terms and the additional terms set forth in such email. You may cancel, upgrade, or downgrade your membership at any time. If your membership ends or is cancelled, Formative will delete your data in accordance with Formative’s Privacy Policy and data retention policy.

For certain membership plans, a credit card will be required to authorize payment at the time of registration and billing cycles will be selected and designated at the time of registration.  Billing cycles are either monthly or annually, depending on what the account holder selects. Your membership will automatically renew at the end of the subscription period unless you cancel your membership before the end of the then-current subscription period, which you may do at any time through the Site or by contacting Formative at the email address set forth in the “Contact Information” section below. Any cancellation will take effect at the end of the current billing cycle. No refund will be issued for the current billing cycle.  If you do not provide notice of non-renewal, you hereby authorize Formative to charge the then-current renewal fees to the credit card associated with your account. As and to the extent required by the jurisdiction applicable to you, Formative will provide notice to you prior to the automatic renewal of your subscription.  

You will pay Formative the fees specified in the membership plan for which you have subscribed, and Formative reserves the right to change the fees at any time upon notice to you. Payments are due upon receipt of invoice. Late payments are subject to an interest charge, which is the lower of one and one-half percent (1.5%) per month or the maximum legal rate. You are responsible for the payment of all taxes associated with these Terms or your use of the Site (other than the taxes based on Formative’s net income). If Formative is required to pay any such taxes, you will, upon receipt of our invoice, reimburse us for any taxes paid by Formative. All payments for both individual teacher subscriptions and school partnerships are considered final and are not eligible for refund. If you have any billing issues or questions, you must notify Formative in writing by email or support chat within five (5) calendar days of the issue being addressed. Any billing issues older than five (5) calendar days will not be considered.

3. Limited Right to Use; User Conduct

Subject to your compliance with these Terms, we grant to you a non-exclusive, limited, non-transferable, non-sublicenseable, non-assignable, and revocable license to access and use the Site solely for your internal business purposes or other non-commercial use. Permission is granted to download the Content for your use only and only for the purposes for which we provided you access to the Site, provided you do not delete, modify, overwrite, hack, or attempt to change or alter any of the Content and that you retain all copyright notices and other proprietary notices contained in the Content, as applicable.

You shall not (and shall not allow or encourage any other person to) distribute, republish, display, copy, reproduce, download, transmit, license, lease, sell, resell, create derivative works from, or otherwise exploit any Content or information from the Site, in whole or in part, without the express written permission of Formative. You may not “mirror” any Content or information from the Site on any other server without prior written permission from Formative. Any unauthorized use of any Content contained on the Site may violate copyright laws, trademark laws, the laws or privacy and publicity, and communications regulations and statutes. You also agree not to permit or to encourage any third party to do any of the same.

In addition, you shall not (and shall not allow or encourage any other person to):

• delete, modify, hack or attempt to change or alter any of the Content on the Site;
• use any graphics separately from accompanying text;
• remove or modify any copyright or other intellectual property notices that appear on the Site;
• attempt to access computer systems or networks connected to any of our servers or to the Site, through hacking or any other means;
• use any robot, spider, other automatic device, or manual process to “screen scrape,” monitor, “mine,” or copy the Content on the Site;
• provide false information, impersonate another person or entity, or misrepresent your affiliation with any entity;
• post on or transmit through the Site any material or content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, or otherwise objectionable;
• use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site or servers or networks connected to the Site, or take any other action that interferes with administration, security, and/or operation of the Site or other parties’ use of the Site;
• take any action that imposes an unreasonable or disproportionately large load on Formative and/or our affiliates’ infrastructure;
• probe, scan, or test the vulnerability of the Site or any network connected thereto;
• disseminate, store, upload, or transmit files that contain viruses, Trojan horses, worms, time bombs, corrupted files, or any malicious code or program that may damage the operation of another’s computer or property of another; or
• engage in any other activity deemed by Formative to be in conflict with the spirit or intent of these Terms.

ANY ATTEMPT TO DO ANY OF THE FOREGOING PROHIBITED ACTS, OR TO OTHERWISE UNDERMINE THE OPERATION OF THE SITE OR THE SERVICES THEREON, MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAW. SHOULD SUCH AN ATTEMPT BE MADE, WE RESERVE THE RIGHT, IN ADDITION TO OUR OTHER REMEDIES, TO SEEK DAMAGES (INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES) FROM ANY SUCH INDIVIDUAL OR ENTITY TO THE FULLEST EXTENT PERMITTED BY LAW.

4. User Content

To the extent that you post, upload, input, submit, or otherwise transmit (collectively, “Post” or “Posting”) any text, images, photos, video, data, information and/or other materials, including without limitation personally identifiable information (“Personal Data”) provided by you or your Authorized Users to or in connection with the Site (collectively, “User Content”), you agree to provide true, accurate, and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. All Posting of User Content is your sole and exclusive responsibility. Formative merely provides a forum for the transmission and dissemination of User Content. YOU AGREE THAT YOU MUST EVALUATE AND BEAR ALL RISK RELATED TO THE USE AND TRANSMISSION OF USER CONTENT TO FORMATIVE. FORMATIVE SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE RESULTS OF ANY ACTIONS YOU OR ANY THIRD PARTY MAY TAKE BASED ON USER CONTENT. Formative has no responsibility or liability for any disputes, communications, or issues between you and your end users and customers.

You acknowledge that Formative does not pre-screen or approve any of User Content and has no obligation to monitor User Content. However, to the extent permitted by law, Formative reserves the right to review, modify (for formatting and editing purposes), remove or delete any of User Content at its discretion as needed to provide the Site. Formative reserves the right at all times to disclose any information as Formative deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Formative’s sole discretion. If notified by a user of the Site that User Content allegedly does not conform with these Terms, Formative may investigate the allegation and determine in our sole discretion whether to remove that portion of User Content, which Formative reserves the right to do at any time and without notice.

By Posting User Content to the Site, you grant, and you represent and warrant that you have the right to grant, to Formative an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, copy, perform, display, and distribute User Content and to prepare derivative works of, or incorporate into other works, User Content, and to grant and authorize sublicenses of the foregoing. You further warrant that the use of User Content by Formative and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties. Formative will not pay you for User Content or to exercise any rights related to User Content set forth in this Section 4.

You acknowledge and agree that you are responsible for the legality of all Personal Data provided by you or your Authorized Users for your use in connection with the Site. Formative processes Personal Data provided by you to the Site solely as necessary to provide the Site and any related services to you. You represent and warrant: (a) your provision of Personal Data to Formative complies with all applicable laws and that you have provided all necessary notices and obtained any consent required for provision of Personal Data to the Site; (b) you have a legal basis for the processing of Personal Data through the Site; and (c) you will provide to Authorized Users and any other end user permitted by you to provide Personal Data to the Site a privacy policy, cookie policy and any other notice required by law that identifies Formative as a third party to whom Personal Data may be disclosed as required by law.

5. Site Updates

In connection with the limited license granted under these Terms, Formative may from time to time update, upgrade, replace, or modify the Site and/or provide new release(s), patches, or fixes to the Site, in its discretion as it deems necessary or appropriate. Any such update, upgrade, release, replacement, modification, patch or fix to the Site will be considered part of the Site and subject to the terms of these Terms (unless these Terms are superseded by a further agreement accompanying such update, upgrade, release, replacement, modification, patch or fix to the Site). Formative shall have the right to migrate your account to a successor or alternative platform or technology that replaces the existing Site from time to time as Formative evolves its products and technologies and your use of such successor Site shall be governed by these Terms (unless such Terms are superseded by a new agreement provided to you). Formative shall have the right to discontinue any service through the Site, or feature or function thereof, without notice to you.

6. Feedback

Formative may provide you with a mechanism to provide remarks, feedback, suggestions, ideas, or other information that is communicated by you to us if you choose, about our products, services and the Site (“Feedback”). You hereby irrevocably assign such Feedback to us. You agree that Formative may, in its sole discretion, use the Feedback you provide to Formative in any way, including in future modifications of the Site or in other Formative products or services. We will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future products, services or operations. Without limitation, we will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere. You acknowledge that you are responsible for whatever material you submit, and you, not us, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.

7. Third-Party Sites; Third-Party Content

The Site may contain links to other websites on the Internet, integration or interfaces between the Site and any third party products and/or services with functionality that interoperates with the Site, and/or access to content, products, and services of third parties, which are not maintained by us (“Third-Party Sites”). When you leave the Site, you do so at your own risk. All Third-Party Sites are provided only because they may be of interest to users of the Site or offer a service for your convenience. The fact that we offer such links should not be construed in any way as an endorsement, authorization, or sponsorship of that Third-Party Site or its content, products, or services.

You acknowledge and agree that Formative has no responsibility for the accuracy or reliability of information provided by the Third-Party Sites. Formative does not author, edit, or monitor these Third-Party Sites. You should refer to the separate terms of use, privacy policies, and other rules posted on a Linked Site before you use them. You acknowledge that we shall not be responsible or liable for any damage or loss caused or alleged to be caused by, or in connection with, your reliance on any information, any good, any service, or any other material provided through a Third-Party Site. You bear all risk associated with the use of the Third-Party Sites, third party services, and your correspondence or business dealings with advertisers other than us found on or through the Site. We reserve the right to terminate such links at any time.  

8. Your Privacy

Formative will treat any information it collects or receives from you through the Site in accordance with its online Privacy Policy (the “Privacy Policy”), which is incorporated herein by reference. Please review the Privacy Policy before you use the Site. By using, accessing, and/or registering for an account on the Site, you consent to all actions taken by Formative with respect to your information in compliance with the Privacy Policy. If you are unwilling to accept the terms and conditions of the Privacy Policy, please do not use the Site.

9. Exclusion of Other Warranties

No employee, agent, representative or affiliate of Formative has authority to bind Formative to any oral representations or warranties concerning the Site. Any written representation or warranty not expressly contained in these Terms will not be enforceable.

10. Disclaimer

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FORMATIVE IS PROVIDING THE SITE AND ALL CONTENT AND SERVICES THEREON ON AN “AS-IS,” “AS-AVAILABLE,” AND “WITH ALL FAULTS” BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, CONTENT, SERVICES, INFORMATION, OR OTHER MATERIALS INCLUDED ON THE SITE. FORMATIVE DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SECURITY AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS.

YOU AGREE THAT YOUR USE OF THE SITE AND THE SERVICES SHALL BE AT YOUR SOLE RISK. FORMATIVE DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE, OR CURRENT. WE SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY OR LOSS ARISING OUT OF ANY ACTION TAKEN IN RELIANCE ON THE SITE AND/OR ANY CONTENT PROVIDED ON THE SITE. YOU UNDERSTAND AND AGREE THAT ANY CONTENT AND/OR DATA ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL AND/OR DATA. FORMATIVE DOES NOT WARRANT THAT THE SITE OR ANY CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS INHERENTLY INSECURE AND THAT YOUR DATA, AS UPLOADED OR TRANSMITTED IN CONNECTION WITH THE SITE, MAY BE SUBJECT TO INTERCEPTION BY AN UNAUTHORIZED THIRD PARTY.

FORMATIVE DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS IN THE SITE WILL BE CORRECTED. IN ADDITION, THE SITE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. FORMATIVE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE OPERATION OF THE SITE OR ANY OTHER THIRD PARTY SITES.

Please note that some jurisdictions may not allow the exclusion of implied warranties and conditions, so some of the above exclusions may not apply to you but shall apply to the maximum extent permitted by applicable law.

11. Limitation of Liability

IN NO EVENT WILL FORMATIVE AND/OR OUR LICENSORS OR OTHER THIRD PARTIES MENTIONED ON THE SITE BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO THE USE OR INABILITY TO USE THE SITE, THE CONTENT, OR OTHER INFORMATION CONTAINED ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, REGULATION, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FORMATIVE AND/OR OUR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON THE CONTENT PROVIDED ON THE SITE.  

IF ANY EXCLUSION, DISCLAIMER, OR OTHER PROVISION CONTAINED IN THESE TERMS IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION, AND FORMATIVE OR ONE OF ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES BECOMES LIABLE FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED, THE AGGREGATE LIABILITY OF FORMATIVE AND/OR OUR LICENSORS AND ANY OF THEIR AFFILIATES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER UNDER CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO ONE HUNDRED DOLLARS ($100.00 USD).  

BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

THE NEGATION AND LIMITATION OF DAMAGES SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FORMATIVE. THE SITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.  

IF YOU ARE A RESIDENT OF NEW JERSEY, TO THE EXTENT NEW JERSEY LAW PROHIBITS THE LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY SET FORTH IN THESE TERMS, SUCH LIMITATIONS AND/OR EXCLUSIONS SHALL NOT APPLY TO YOU.

Any claim or cause of action arising out of or related to your use of the Site, these Terms, or your use of the Content made available through or on the Site must be filed within one (1) year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary.

12. Indemnity

You agree to indemnify and hold harmless Formative, its affiliates, shareholders, directors, officers, co-branders, subsidiaries, parents, employees and agents, and, at our sole election, defend the foregoing, from any claim, demand, liability, dispute, damage, cost, expense, or loss, including attorneys’ fees and costs of litigation, arising out of or in any way related to your use of or access to the Site, your use of the Content, your Data, your violation of these Terms, your violation of any rights of a third party, or any negligence or willful misconduct by or on behalf of you or your Authorized Users.

13. Dispute Resolution

You agree that any dispute arising out of or relating in any way to your use of the Site requires that the claim be resolved exclusively by confidential binding arbitration except that, to the extent you have in any manner violated or threatened to violate the Content and any intellectual property rights therein, Formative may seek injunctive or other appropriate relief. The arbitration shall be conducted before three neutral arbitrators in the State of Delaware, U.S.A., in accordance with the rules of the American Arbitration Association (“AAA”), as then in effect. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding. Except for punitive and consequential damages (which may not be awarded), and subject to these Terms, the arbitrators shall be authorized to award either party any provisional or equitable remedy permitted by applicable law. The parties shall equally share all AAA charges and fees associated with the arbitration.

BECAUSE THE USE OF THE SITE REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATORS’ DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.

The award of the arbitrators may be enforced in any court having jurisdiction thereof. Each party consents (a) to the non-exclusive jurisdiction of the courts of the State of Delaware, or to any federal court located within the State of Delaware for any action (i) to compel arbitration, (ii) to enforce any award of the arbitrators, or (iii) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim, or provisional equitable remedies, and (b) to service of process in any action by registered mail or any other means provided by law. Should this Section 10 be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that exclusive jurisdiction and venue for any claims will be in the state or federal courts having jurisdiction over the State of Delaware.

14. Miscellaneous

a. Modification and Termination of these Terms

We may make changes to these Terms from time to time. We will post updates and changes to the Site and the date that these Terms were last revised is identified at the top of the page. To the extent any modification to these Terms materially affects your rights or obligations under these Terms, the updated Terms will be presented to you upon your next log-in to the Site and you will be required to accept the updated Terms before proceeding to and continuing your use of the Site. If you do not agree to the updated Terms, you must cease using the Site.

Formative may terminate these Terms and your use of the Site at any time without notice. In addition, these Terms will terminate immediately and automatically without any notice if you violate any of the terms and conditions herein. Sections concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination.

b. U.S. Service

The parties acknowledge and agree that, unless Formative enters into a separate written agreement with a customer outside of the United States of America, its territories and possessions (the “United States”), the Site is intended for use by users in the United States only.  Formative does not intend to market or offer the Site to users outside of the United States and nothing on the Site shall be construed as marketing or offering the Site or any services thereon to users outside of the United States. Formative does make any representations or warranties with respect to use of the Site outside the United States and does not guarantee that the Site will comply with foreign laws, rules and regulations, including data privacy laws. You may not use the Site or export the Content in violation of United States export laws or regulations. If you access the Site from a location outside of the United States, you are responsible for compliance with all local laws and regulations.

c. Digital Millennium Copyright Act Compliance

We will use commercially reasonable efforts to respond quickly to claims of copyright infringement as found in our Content, according to the terms of the Digital Millennium Copyright Act of 1998 (“DMCA”) as found under United States law (17 U.S.C. § 512). If you believe any of your copyrights are infringed by our Content, please provide us with a written notice via email at support@formative.com. Such notice must contain the following information: 

1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2. A description of the copyrighted work that you claim has been infringed;
3. A description of where the material that you claim is infringing is located on the Site;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

We are only required to respond to those notices that substantially comply with the above requirements. We will investigate your claim and will notify by the method of contact you used to file your notice with us.

d. Typographical Errors; Content Disclaimer

Although we attempt to ensure the integrity and accurateness of the Site, we make no claim, representation, or warranty as to the accuracy, reliability, or suitability of the information contained within the Site, including, but not limited to, Content and the information contained in any text, documents, graphics, and other elements. The Content may contain technical errors, typographical errors, errors made or perpetuated by third parties, or other forms of error. The Content may be changed without notice and is not guaranteed to be complete, correct, timely, current or up-to-date. Similar to any printed materials, the Content may become out-of-date. We undertake no obligation to update any Content on the Site. We reserve the right in our sole discretion to make alterations or deletions to the Content at any time without notice. We reserve the right in our sole discretion to edit or remove any documents, information or other content appearing on the Site at any time without notice.

e. Equitable Remedies

Nothing herein shall prohibit Formative from seeking a temporary restraining order, preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid irreparable damage; and nothing herein shall prevent Formative from bringing and pursuing legal action to specifically remedy any breach or threatened breach of any obligation hereunder by you involving Formative’s Trademarks and Content.

f. Assignment

You shall not assign your rights or delegate your obligations under these Terms without the prior written consent of Formative. Any attempted assignment in violation hereof shall be void and of no force or effect. Formative may assign its rights and delegate its duties hereunder at any time without your consent.

g. Severability; Waiver

If any provision in these Terms is found to be invalid, such provision shall be ineffective only to the extent of such invalidity, and the parties agree that the court or arbitrator should give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect. No waiver by us of any term or condition set forth herein shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition. Our failure to act with respect to a breach by any visitor using the Site does not constitute a waiver of our right to act with respect to subsequent or similar breaches.

h. Governing Law

These Terms will be governed by and construed in accordance with the laws of the State of Delaware without regard to its choice-of-law provisions. In the event of any conflict between foreign laws, rules, and regulations and those of the United States, the laws, rules and regulations of the United States will govern.

i. Contact Information

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