August 1, 2016 Terms of Service

Terms of Service

Effective August 1, 2016

THIS IS A CONTRACT. IT CONTAINS A BINDING ARBITRATION PROVISION. THIS PROVISION AFFECTS YOUR LEGAL RIGHTS AND MAY BE ENFORCED BY YOU OR US.

Table of Contents

1. Who we are and how to reach us
2. What you are agreeing to and how
3. What you can do with Boom Learning
4. Make good choices and take responsibility when you make bad choices
5. Everything you need to know about buying and renewing a membership and redeeming points
6. Additional terms that apply only to sellers
7. You agree that we will use ARBITRATION if we just can’t work things out without help
8. You WARRANT AND REPRESENT that you have made good choices
9. You agree to INDEMNIFY us against your poor choices
10. Everything is provided as is and subject to change without notice. DISCLAIMER OF WARRANTIES.
11. Our liability to you is limited. LIMITATION OF LIABILITY
12. Other legal terms

1. Who we are and how to reach us.

We (also “our” and “us”) are Boom Learning Inc., and our successors, assigns, and subsidiaries. Legal notices must be sent to 9805 NE 116th St Suite 7198, Kirkland WA 98033 or help@BoomLearning.com.

2.  What you are agreeing to and how.

This is an agreement about Boom Learning™ (accessed through the Boom Cards™ apps on the App Store or on Google Play and on the web at boom.cards and wow.boomlearning.com). “Boom Learning” consists of

  • a platform for creating interactive teaching resources (“decks”), including the ability to incorporate “assets”, such as images, artwork, fonts, video and sound, into those decks,
  • a marketplace for selling and sharing decks and assets, collectively “products”,
  • instructor tools for managing and assigning decks, classrooms, and students and reviewing student performance,
  • student tools for playing decks and reviewing progress on assignments.

2.a.  Where to find the terms and conditions to which you are agreeing.

By using Boom Learning, you are agreeing to the terms and conditions in this document and the terms in our Privacy Policy(collectively the “terms”). If there is a conflict between these Terms of Service and our Privacy Policy, the Privacy Policycontrols.

2.b.  What you are promising us is true about you when you agree to the terms.

When you accept the terms, you represent and agree that

  • You are not a minor;
  • If a teacher, you are agreeing for yourself and your school and you have authorization to do so;
  • If a seller, you are agreeing for yourself and your business entity, if any.

If you do not accept all the terms, do not use Boom Learning. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify account information you provide, including your authorization to agree to the terms. Although minors may use Boom Learning, a responsible adult must accept terms and set up accounts on the minor’s behalf. Memberships are assigned to a single adult. Adults create accounts for students under their charge. You may add and delete students. Understand that if you delete a student, you delete the record of that student’s past work. Deletion is not reversible. You may not share your account with other others.

3. What you can do with Boom Learning.

This section explains the rights you get as a user, or grant as a seller, so that Boom Learning users can create and use decks. Sometimes things go wrong, someone infringes, intentionally or accidentally, or otherwise loses rights to sell and they need to remove a product from the store. What happens in that case is explained in Section 4. Rather than burden our users with technical, exhaustive, and precise references to the various intellectual property and related rights necessary, we instruct all attorneys reading this to understand that all necessary rights to take the actions described that are not stated explicitly are implied. Boom Learning, along with products available on it, are licensed, not sold, and ongoing access requires a current membership.

Subject to the licenses we grant each other, you retain all ownership rights in and to your products. We own all proprietary rights in and to Boom Learning, obviously excluding you and our suppliers’ products. In the event you provide us with suggestions, ideas or other feedback, we will be free to use that feedback in any manner without restriction and without owing you compensation.

3.a. You can use what you buy on Boom Learning.

When you buy a deck, you get permission to use it with your students, either individually or as a display or performance. Your license is for yourself and many as of your students as your membership tier allows. We may modify the number of students a tier is allowed at any time in our sole discretion. The seller reserves the right to modify the deck after purchase to correct errors and ommisions.

When you buy assets on Boom Learning, you get permission to include those assets in decks you create and to use assets included in decks with your students. You also get a right to allow your customers, should you sell your deck, to use the decks you sell with their students. For decks you sell, you have a limited right to use the assets in promotions and marketing of your decks, provided that you are promoting your work and not the asset. You may not claim as yours any products that are not your own work. You have no rights to extract assets from decks by any means. You may modify assets only to the extent allowed by the tools included in the Boom Learning platform. Asset sellers may provide more generous terms to you. If so, their terms apply.

Boom Learning names and logos are the trademarks, trade names and/or service marks of Boom Learning. Our sellers’ names and logos are the trademarks, trade names and/or service marks of our sellers. You may use our names descriptively in reviews. For all other uses, ask for written permission from us or our sellers first.

3.b. You (a seller/supplier) grant rights to your customers.

You grant customers to whom you sell decks, whether free or for a fee, a worldwide, perpetual and irrevocable right and license of access to and use of the deck. Your license extends to the student users permitted by your customers’ membership tiers. We may modify the number of students a tier is allowed, at any time and in our sole discretion. If any deck created by you is purchased by a customer, and the deck contains an asset you cannot lawfully include, you must repair the deck. If you fail to repair the deck, we will issue refunds to your customers for the deck on your behalf and charge the refunds back to you. Once a deck has been sold, you may only modify it to correct errors and omissions.

You grant customers to whom you sell assets, whether free or for a fee, a worldwide, perpetual right and license to include those assets in decks. You also grant them rights to use your assets to market their decks, to the extent your asset is visible in any version of the deck used in marketing or promotional materials. You grant your customers the right to modify assets to the extent allowed by the tools included in Boom Learning, for example, rotation and resizing. You may provide your customers with more generous terms by including those terms in the product description and in any other location we make available for you to do so. If you provide a bundle, and your terms for items in the bundle are not identical, the most generous terms will apply. See Section 4 for when you may revoke an asset license.

You agree that your name may be used descriptively in reviews.

3.c. You grant us rights to distribute products and make them available to customers.

You grant us a perpetual, worldwide, nonexclusive right and license to distribute your products to customers through Boom Learning. Your grant gives us the right to make modifications necessary to conform to Boom Learning system requirements, including conversions, corrections, resizing and reformatting. You agree that in the course of correcting errors, maintaining site integrity, or providing customer assistance that we may modify your products. You acknowledge that errors or reductions in quality may occur when we do so. Your sole remedy is to correct it yourself or to withdraw the product, and if appropriate resubmit an acceptable version.

For products, you may revoke our license to distribute the product to new customers by withdrawing the product from the store. Once a product has been purchased, you may not revoke your customers’ rights to continue to use the it nor may you revoke our right to continue to store and serve it to your customers who purchased it. You grant us a worldwide, nonexclusive, irrevocable, perpetual right to maintain and distribute copies of your products to support customers who have purchased them, either free or for a fee, prior to withdrawal.

3.d. You grant us rights to promote and market your products either individually or as part of Boom Learning.

With respect to products published in the Boom Learning store and solely for the purposes of marketing and promoting Boom Learning and your products, you grant us the rights

    • to display or perform your products,

and/or

  • to make copies and modify your products, including taking screenshots, clipping, collaging, resizing, and other reasonable modifications for the purpose of creating marketing materials, such as promotions, presentations, and advertisements, in any media now known or existing hereafter;
  • to display and/or perform a preview of your products in the Boom Learning store.

You also grant us the right to use your store name, and image, to market Boom Learning and your products. You may revoke all or some of your grant to us contained in this paragraph by providing us a communication to help@BoomLearning.comdescribing how you wish to limit this paragraph. Your revocation will only apply to new campaigns and materials arising after the date we receive the notice. Be aware that if you revoke this grant, we will not be able to include your materials in marketing campaigns and your sales may suffer. We have no obligation to market or promote your products or to continue doing so after have started to do so. We will not owe you any fees for marketing or promoting your products.

3.e. You are responsible for making sure you have all the rights you need to have to grant these licenses.

Your license grants extend to all copyrights and related rights, patents, and rights of publicity inherent in your products, and trademarks, logos, and other proprietary rights necessary to grant the licenses. You will obtain all licenses and clearances at your own expense. You are solely responsible for accounting to and paying any of your co-owners or licensors amounts due to them.

4. Make good choices and take responsibility when you make bad choices.

We serve the education market. Products must be appropriate to that market. They should be respectful of the rights of others. We respect intellectual property and privacy rights.

4.a Our expectations of you.

We expect you to respect

  • the privacy rights of all users;
  • the intellectual property rights of others;
  • the rights of attribution of others;
  • the law;
  • the integrity of the Boom Learning computer system by only accessing it through pages Boom Learning Inc. makes publicly available using your authorized login credentials and by avoiding linking to or injecting malicious code or otherwise attacking our systems;
  • the importance in education of distinguishing fact from opinion;
  • the necessity of not advertising or marketing to K-12 students (no advertising or marketing in decks for K-12 students); and
  • the importance of providing truthful and valid information.

We expect you to take pride in published decks and provide high quality products. You agree not to include or link to content of any kind that is harassing, threatening, fraudulent, inappropriate, hateful, pornographic, defamatory, obscene, offensive, indecent or unlawful (as judged by solely us).

4.b. Bad choices have consequences.

We reserve the right to remove content, suspend you, ban you, or pursue other remedies against you at our sole discretion, any time, for any breach of the terms of this agreement, without notice. We may withhold monies owed to you while investigating claims made against you. If we determine you are in breach, we may choose to refund customers for products you sold in violation of these terms. If we issue refunds, we will recoup the refunds from any an all monies we owe to you and, if you have insufficient funds with us, bill you and suspend your account until you have paid us such amounts. You will remain responsible for all amounts due until paid in full.

We reserve the right to provide information to third parties, such as our sellers, schools, law enforcement, and attorneys general, to enable them to pursue legal remedies against you. You agree that we will not be liable to you or any third party for any suspension or termination of your account. There are no refunds when an account is suspended or terminated. If we terminate your account, you will not establish a new account without our permission.

4.c. You can report infringement of copyrights and we will take action.

The Digital Millennium Copyright Act provides specific guidelines for reporting infringement of your rights by a third party to us. It also defines what we do when we receive a complaint from you. Copyrights are rights to prevent others from copying, displaying, performing, distributing, or making a variation of a work of original expression created by you and captured in some form by you. If you believe your copyrights have been violated, tell us using our Notice and Procedure for Making Claims of Copyright Infringement. We will remove items that we have a good faith belief we have a legal right and obligation to remove.

We reserve the right to block you from accessing assets you upload, use or purchase, if we determine that you may not lawfully use the asset. We, in our sole discretion, will determine whether you are entitled to a refund for assets you purchased from a seller on Boom Learning.

4.d. We can’t make everyone behave all the time.

You will see content on Boom Learning that was posted by our sellers and third parties. You may see links to third party sites. Those third parties are solely responsible for the content they make available. You may object to content and we will determine in our sole discretion if it should be removed. We are not responsible for the accuracy, appropriateness, lawfulness or truthfulness of any seller or third party content. We are not liable to you if you rely on seller or third party content or if you suffer damage from a seller or third party. We are not liable even if you object to us about the content and we take no action. We will respond to a properly issued court order to remove content.

5. Everything you need to know about buying and renewing a membership and redeeming points.

5.a. Points, memberships, and purchase orders.

Memberships and points packages are priced in dollars. Products are priced in points. You acquire products by redeeming points. Points included in a membership are promotional points. Promotional points have no monetary value, may not be exchanged for cash or money, and are non-refundable. Promotional points are valid for the term of the membership under which they were awarded. Points that are purchased separate from a membership (purchased points) do not expire. We reserve the right to discontinue the availability of points at any time. If we suspect fraud or abuse regarding your points, we may cancel, suspend, or limit your ability to redeem points. We delete points we determine where obtained fraudulently. We may charge you for the value you obtain by fraudulently using points. You may not have more than 100,000 unused points in your account at any time.

You must have a membership to use products and to redeem points. Purchased points unused at the time a membership is scheduled to renew will be automatically applied on a pro rata basis to extend the membership for a number of days equal to the remaining value of the points, unless you cancel your membership and request a refund of unused points prior to the renewal date.

You may use purchase orders to buy points and memberships. Contact us at help@BoomLearning.com to use a purchase order. You must also supply a credit card number. We will charge the credit card if the purchase order remains outstanding for more than sixty (60) days.

5.b. Automatic Renewals

By purchasing a membership, you are agreeing to have it automatically renewed. If automatic renewals are not barred where you reside, we will automatically renew your membership after providing you with an email notice of the upcoming renewal. All renewal fees will be at the then current price. We will provide instructions on how to cancel in the renewal notice. You must cancel before the renewal date to avoid being billed for the renewal. You may cancel your membership in the settings for your account.

5.c. All sales are final.

Unless otherwise provided by law or a particular offer, all purchases and redemptions are final and nonrefundable. We may, at our sole discretion, elect to issue refunds for unacceptable products that are removed from our store to as many or as few purchasers as we decide. Our decision to issue a refund for a particular customer does not obligate us to reverse redemptions to any other customer or for any other product. If we cancel or suspend your account, your right to acquire and use products stops immediately.

5.d. You pay all applicable charges.

Prices exclude applicable taxes and currency exchange settlements unless stated otherwise. You are responsible for paying taxes or other charges. If your account is cancelled, you are obligated to pay all charges made to your account before cancellation was effective. Failure to provide valid payment may result in you being banned from the store. Being banned from the store does not absolve you of responsibility for amounts in arrears.

5.e. We provide electronic receipts, invoices, and statements. You have six months to tell us about mistakes.

We provide you with electronic receipts, invoices and statements. These are the only receipts, invoices and statements we provide. It is your responsibility to print or save copies for your records. If we make an error on a receipt, you must report the mistake to us within six months after the error appeared (see dispute resolution). If you do not inform us within six months, you agree that you release us from all claims of liability and loss resulting from the error and that we will not be required to correct the error or provide a refund.

6. Additional payment and sales terms that apply only to sellers.

6.a. Sellers are wholesalers and must have a publisher membership.

You must purchase a membership with public publishing rights to become a seller. All products are presented as sold by you. All information you provide in your seller profile is public information. You may set a price of free or a price in points for each item. You may withdraw a product from further sale. Withdrawal is usually effective within 48 hours, and is subject to system latencies. We may fulfill customer orders placed prior to the withdrawal becoming effective.

6.b. You agree we can send you emails about selling if you have a publisher membership.

You consent to us sending you emails relating to selling opportunities from time to time. This takes precedence over any directions you may have given us elsewhere.

6.c. Your proceeds are net after fees, taxes, and other charges and paid through PayPal.

All payments are issued through PayPal. You must have a PayPal account to receive payment. If you are not in breach of your obligations to us nor under investigation for breach, for each product you sell, we will compensate you at the rate of .0085 per point. This rate reflects a value of $.01 per point reduced by 15% as a service fee paid to us. The start or stop time of free offers and point value changes you set are subject to system latencies and may not be effective immediately. You agree to accept payment at the points value the buyer was presented. Your payouts will be reduced by (1) any refunds issued on your products, (2) the fee PayPal charges us to make the payment to you, (3) amounts you owe us, and (4) your annual membership fee, if due for renewal. If you receive a payment in error, we may reverse or require return of the payment. You agree to cooperate with us in our efforts to do so. We may reduce payments owed to you to adjust for previous overpayments and may do so without notice.

6.d. We collect and remit sales tax for Washington State. You are responsible for other taxes.

We display and remit sales tax for purchasers with addresses in Washington State. We consider you a wholesaler. You are responsible for all other taxes that may be due and payable as a result of your sales. Where required by law, we may deduct or withhold any and all applicable taxes from your proceeds and the amount you receive, as reduced, will constitute payment in full. Upon certain reporting conditions being triggered, we may require that you provide accurate taxpayer identification information before receiving further payments.

6.e. Payments will be made based on your accumulated earnings.

All payments are made in U.S. dollars. Your account becomes payable when $100 (one hundred dollars) has accumulated in your account or monthly, whichever occurs later. You will receive amounts payable within sixty (60) days after they became payable. If this agreement is terminated, we may withhold all proceeds due for three months after the date they would otherwise be payable to ensure our ability to offset any refunds or other charges by which your proceeds would normally be reduced.

7. You agree that we will use ARBITRATION if we just can’t work things out without help.

Any dispute, controversy or claim arising out of or relating to these terms or to your purchase or use of Boom Learning, including the formation, interpretation, breach or termination thereof, including whether claims asserted are arbitrable, will be referred to and finally determined by arbitration administered by JAMS in King County, Washington, in accordance with JAMS’ Streamlined Arbitration Rules and Procedures or, if you are situated outside of the United States, in accordance with JAMS International Arbitration Rules. Prior to the initiation of any arbitration, you and we shall attempt in good faith to resolve all disputes by negotiation between representatives with the authority to settle the controversy. If the matter is not resolved by negotiation, then, if the total amount in controversy is less than $100,000, the matter will proceed to mediation to be conducted online through JAMSconnect. If mediation is unsuccessful in resolving the dispute or the matter has a total value greater than $100,000, then you and we will follow the arbitration procedures set forth above.

You and we agree that the laws applied in the arbitration will be the laws of the State of Washington. If, however, you are a government or public entity required by law to use the laws of your state, then the laws of your state shall apply, but only to the extent required by your state’s law.

You and we further agree that arbitration must be on an individual basis. This means neither you nor we may join or consolidate claims in arbitration by or against other purchasers or users of Boom Learning, or litigate in court or arbitrate any claims as a representative or member of a class.

Finally, you and we agree that any arbitration initiated hereunder must be brought no later than one hundred and eighty (180) days after the dispute first arose, unless the matter qualifies for mediation, as described above, in which case the initiation of a mediation shall toll this limitations period from the date of initiation through the date of the completion of the mediation.

8. You WARRANT AND REPRESENT that you have made good choices.

You warrant and represent (1) that any and all information and products you provide to us are truthful, accurate, complete, current and in compliance with these terms; (2) that any email address you provide is yours and that you have not impersonated any person or used a username or password that you are not authorized to use; (3) that you are fully authorized to provide the products and to authorize us to provide the products to others; and (4) that your products, and any site to which your products link, (a) comply with all applicable laws and regulations, (b) do not infringe, misappropriate or otherwise violate any third party intellectual property right, (c) do not breach the rights of any person or entity, including, without limitation, rights of publicity or privacy, and are not defamatory, and (d) do not and will not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity.

9. You agree to INDEMNIFY us against your poor choices.

At our request, you will defend, hold harmless, and indemnify us and our directors, officers, employees, agents, affiliates and each of their successors from and against all third-party claims, actions, demands, proceedings, damages, costs and liabilities of any kind that arise out of or relate to (1) your products, (2) your use of Boom Learning or sellers’ products, (3) your violation of laws or applicable regulations, (4) your breach of your warranties, representations or obligations under this agreement, (5) your direct communications with others, including direct communications between customers and sellers, and (6) other claims that arise out of your actions, products or use. We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.

10. Everything is provided as is and subject to change without notice. DISCLAIMER OF WARRANTIES.

Boom Learning, and the content/products found on Boom Learning, are provided “AS IS” and “AS AVAILABLE” without warranty of any kind, whether express or implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. The entire risk arising out of use or performance of Boom Learning products remains with you. No communication, whether oral or written, from us to you creates any warranty. We and our Sellers may change, suspend or discontinue Boom Learning or any product at any time for any reason, with or without notice. You agree that neither we nor our Sellers shall be liable to you or any third party if Boom Learning or any product is changed, suspended or discontinued.

11. Our liability to you is limited. LIMITATION OF LIABILITY.

We and our suppliers are not liable to you for any errors or inaccuracies you found in or on Boom Learning; any service, system, or process delays, latencies, failures or interruptions; or any actions you take in reliance on us, our suppliers or the content. Our and our suppliers liability to you is limited whether the harm to you was foreseeable or not. We and our suppliers are not liable to you for any special, exemplary, or punitive damages, including loss of data, revenue, and/or profits, costs, or expenses, including legal fees and expenses, regardless of the legal theory on which you claim liability is based, even if you have advised us or our supplier of the possibility of those damages.

Our and our suppliers’ liability to you is limited to the amount actually paid by you to us, if any, for the product(s) at issue. If you are a supplier, we will not be liable to you for amounts in excess of proceeds due and payable by us to you for the six-month period preceding the claim. YOU AGREE THAT YOU ARE WAIVING CLAIMS THAT YOU MAY NOT KNOW OR SUSPECT YOU HAVE AT THE TIME YOU ENTER INTO THIS AGREEMENT. YOU AGREE TO SPECIFICALLY WAIVE ANY CLAIMS AS A CREDITOR YOU MAY HAVE THAT YOU DO NOT KNOW OR SUSPECT EXIST IN YOUR FAVOR. YOUR WAIVER AS A CREDITOR INCLUDES WAIVER OF CLAIMS THAT WOULD HAVE MATERIALLY AFFECTED HOW YOU WOULD SETTLE A MATTER IN WHICH WE ARE A DEBTOR TO YOU. You acknowledge and agree that we cannot ensure that either content or data will be protected from theft or misuse. We have no liability arising from a failure of any system or feature that limits use of content or data.

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.

12. A handful of other legal terms you should read but probably won’t

12.a. These terms will change over time, those changes apply to you

Although we will attempt to notify you when changes are made to these Terms of Service, you should periodically review the most up-to-date version. We may, in our sole discretion, modify or revise these Terms of Service, including the Privacy Policy, at any time, and you agree to be bound by such modifications or revision. If any term is held unlawful, void or unenforceable for any reason, it will be considered modified so that its purpose and the remaining terms can be lawfully enforced. Acceptance of the changed terms is a condition to continuing as a member. If you do not wish to accept the new or revised terms, you must cancel your membership and/or withdraw your digitals.

12.b. Just because we gave you a pass once doesn’t mean we have to again.

Our failure to act if you fail to comply with a term does not waive our right to act on any subsequent failure to comply or nor does it waive the term in question.

12.c. Going our separate ways.

This agreement is effective from your acceptance until terminated by you or us in writing or electronically. You terminate by ceasing to use Boom Learning. Any terms that by their nature are intended to apply indefinitely continue to apply, including but not limited, perpetual licenses, ownership provisions, warranties, disclaimers, indemnities, and limitations of liability.

12.d. Assigning rights to others.

We may assign any rights we have under any agreement to any successor or purchaser of us or of our assets, to the extent permitted by law. If you assign your rights or obligations to another party, you must give us written notice of the assignment no later than ten (10) business days following the assignment. This agreement is binding on and inures to the benefit of any successors and assigns.

12.e. If one of these terms falls down, they do not all fall down

If the final judgment of a court or arbitrator declares any term invalid, void or unenforceable, the you and we agree to reduce the scope, duration, area or applicability of the term, to delete specific words or phrases, or to replace any invalid, void or unenforceable term with a term that is valid and enforceable and that comes closest to expressing the original intention of the invalid or unenforceable term.

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