Welcome to Beyond 12! Beyond 12 Education Inc., d/b/a Beyond 12 (“Beyond 12,” “we,” “us” or “our”) is a nonprofit dedicated to helping students access the academic, social, and emotional support needed for them to succeed in higher education.
AGREEMENT
PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY; THEY CONSTITUTE A LEGAL CONTRACT BETWEEN YOU, THE USER (AS DEFINED BELOW), AND BEYOND 12. These Terms govern your use, and Beyond 12’s provision to you of any Beyond 12 product or service that contains a link to these Terms, including beyond12.org and any other website operated by or on behalf of Beyond 12 with a link to these Terms (collectively, the “Site”), any mobile application offered by Beyond 12 with a link to these Terms, including the Beyond 12 Tutor App, (collectively, the “App”), and any content, information, services, features, or resources available or enabled on the Site or the App (collectively, the “Services”). Any visitor to the Site or user of any other part of the Services is referred to herein as a “User.”
SUPPLEMENTAL TERMS AND PARTNER AGREEMENTS
Your use of the Services may be subject to any additional terms, conditions, and policies that we separately post on the Services and any agreements that you have separately executed with Beyond 12, which are incorporated by reference into these Terms (the “Supplemental Terms,” together with the Terms, the Agreement”). If there is any conflict between these Terms and any Supplemental Terms, the Supplemental Terms will control to the extent of the conflict and only with respect to the Services or features subject to the Supplemental Terms. Most Services are designed for use by Users who are enrolled or are soon-to-be enrolled in a postsecondary education program. Some student Users access and use the Services at the direction or invitation of an educational institution or other entity that has a separate agreement with Beyond 12 (such institution or entity, a “Partner” and such agreement, a “Partner Agreement”). Pursuant to a Partner Agreement, Beyond 12 provides the applicable Partner tech-enabled services to help the Partner improve the academic, social and emotional outcomes for the students that the Partner serves. The delivery of services to the Partner often includes Beyond 12 making certain of the Services available to students served by the Partner who register for accounts with Beyond 12. For this reason, if you are a student User who accesses and uses the Services because you were directed or invited to do so by a Partner (e.g., you registered through a website link provided by a Partner) (“Your Partner”), then during the time you are served by or are enrolled in one of Your Partner’s programs, you are a “Partner-Student User” (see Section 2.4 for converting Partner-Student User Accounts to personal Accounts). As a Partner-Student User, you acknowledge and agree that our provision of the Services to you, and your access and use of the Services is subject to the terms of the Partner Agreement between Beyond 12 and Your Partner so long as your Account is associated with Your Partner. In such a case, Your Partner may control and administer the implementation of the Services and any account you have on the Services, including by controlling privacy-related settings, provisioning or deprovisioning access to the Services (or parts thereof), enabling or disabling third-party integrations, and managing permissions. Your Partner can also access and process your data and the contents of your communications and files associated with your account. If Your Partner provides you with access to the Services, your use of the Services is subject to Your Partner’s policies, if any. Should you have any questions about Your Partner’s policies or Your Partner’s implementation of the Services, contact them directly. In the event of any conflict between the Agreement and Beyond 12’s P
ACCEPTANCE
BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; AND (2) YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THE AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT THE TERMS “YOU” AND “YOUR,” AS USED HEREIN, APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL. IF YOU ARE A USER UNDER THE AGE OF EIGHTEEN (18) YEARS OLD, YOU AGREE THAT YOU HAVE REVIEWED THESE TERMS WITH YOUR PARENT OR LEGAL GUARDIAN AND HE OR SHE AGREES TO THESE TERMS AND OUR PRIVACY POLICY ON YOUR BEHALF AND TAKES FULL RESPONSIBILITY FOR YOUR COMPLIANCE WITH THESE TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS AND UPDATES TO THE AGREEMENT
PLEASE BE AWARE THAT SECTION 14 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND BEYOND 12 HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 14 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND BEYOND 12 BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND BEYOND 12 WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 6 (BEYOND 12 COMMUNICATIONS) CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, AND TELEPHONE.
THE AGREEMENT IS SUBJECT TO CHANGE BY BEYOND 12 IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Beyond 12 will make a new copy of the Terms available on the Site and, to the extent applicable, in the App, and any new Supplemental Terms will be made available from within, or through, the affected Services. We will also update the “Last Updated” date at the top of the Terms. If we make material changes to the Terms, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account (as defined in Section 2.1) or another manner through the Services (which may include posting an announcement on the Site or App). Beyond 12 may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE, AND AS APPLICABLE, THE APP TO VIEW THE THEN-CURRENT TERMS.
1.1 Rights to use the Services.
The Services, and any parts thereof, are protected by copyright laws throughout the world. Subject to the Agreement, Beyond 12 grants you the right to access and use the features and functionality of the Services, as well as a limited license to reproduce portions thereof for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Beyond 12 in a separate license, your right to use any part of the Services is subject to the Agreement. Beyond 12, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the Services terminates the licenses granted by Beyond 12 pursuant to the Agreement.
1.2 App License.
For any App made available as part of the Services that you download, Beyond 12 grants you, subject to your compliance with the Agreement, a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. Furthermore, for any App accessed through or downloaded from the Apple App Store (an “App Store-Sourced Application”), you will use the App Store-Sourced Application: (a) only on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) only as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
1.3 Updates.
You understand that the Services are evolving. You acknowledge and agree that Beyond 12 may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use or continue using the Services. Any future release, update or other addition to the Services will be subject to the Agreement.
1.4 Certain Restrictions.
By accessing and using the Services you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or any portion of the Services or any content displayed thereon; (b) use any metatags or other “hidden text” using Beyond 12’s name or trademarks; (c) frame or utilize framing techniques to enclose any trademark, logo, or other Beyond 12 content (including images, text, page layout or form) of Beyond 12; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) access or use the Services in order to build a similar or competitive website, product, or service; and (f) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages or components of the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from web pages in the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials). All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
1.5 No Support or Maintenance; Necessary Equipment.
You acknowledge and agree that Beyond 12 will have no obligation to provide you with any support or maintenance in connection with the Services (unless you are a Partner-Student User associated with a Partner that has contracted with us to receive such support or maintenance). As between us and you, you are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
1.6 Use by Children Under 13.
The Children’s Online Privacy Protection Act (“COPPA”) requires that all online service providers, including Beyond 12, obtain parental consent before knowingly collecting personally identifiable information from children under the age of thirteen (13). Children under the age of thirteen (13) are prohibited from using the Services or creating an Account unless they are doing so with parental consent or with the consent of a teacher, school, or district who is providing such consent in compliance with COPPA. We do not knowingly collect or solicit any personally identifiable information from children under the age of thirteen (13), without the required consent. If we learn that we have collected personal information from a person under the age of thirteen (13) that does not comply with COPPA, we will delete that information as soon as reasonably practicable. If you believe that a child under the age of thirteen (13) has provided personally identifiable information to us without the necessary consent, please contact us as soon as possible at privacy@beyond12.org.
1.7 Ownership.
Excluding any User Content that you may provide (defined in Section 4.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Beyond 12 or Beyond 12’s suppliers. Neither the Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1. Beyond 12 and its suppliers reserve all rights not granted in the Agreement. There are no implied licenses granted under the Agreement.
2. REGISTRATION AND ACCOUNTS
2.1 Registration and Account Creation.
In order to access and use certain features of the Services, you may need to register or create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) an email address and password. You agree to provide information required for your use of the Services that is, and to update such information so it remains true, accurate, current and complete. Beyond 12 reserves the rights to establish eligibility criteria to use the Services, and in some cases, at our sole discretion, impose limitations or restrictions on certain Accounts including, but not limited to, deletion of Accounts.
2.2 Social Networking Site.
You may have the opportunity to access the Services through a social network service (“SNS”) as part of the functionality of the Services. If you connect via a SNS, you may link your Account with a SNS, by allowing Beyond 12 to access your SNS, as is permitted under the applicable terms and conditions that govern your use of each SNS. You represent that you are entitled to grant Beyond 12 access to your SNS account (including, for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable SNS. By granting Beyond 12 access to any SNS accounts, you understand that Beyond 12 may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services that you have provided to and stored in your SNS account (“SNS Content”) so that it is available on and through the Services. Unless otherwise specified in the Agreement, all SNS Content will be considered to be User Content (as defined below). Depending on the SNS account you choose and subject to the privacy settings that you have set in such SNS account, personally identifiable information that you post to your SNS account may be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND BEYOND 12 DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Beyond 12 is not responsible for any SNS Content, including but not limited to, accuracy or legality of, or infringement by, the SNS Content.
2.3 Account Responsibilities.
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Beyond 12 of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself. Beyond 12 cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2.4 Converting a Partner-Student User Account to a Personal Account.
A User who was originally a Partner-Student User may convert his or her Partner-Student User Account to a personal Account if the User wishes to continue using the Services after such User is no longer enrolled or served by a Partner (e.g., because the User completed the Partner’s program or the Partner’s Partner Agreement with Beyond 12 ended). For more information on how to convert your Partner-Student User Account to a personal User Account, please contact privacy@beyond12.org. Once the conversion takes place, your personal Account and the information in it will not be accessible by Your Partner.
3. NO CHARGE
Access to and use of the Services currently are provided free of charge to Users. Beyond 12 reserves the right to change its fee structure for any of the Services in the future. Prior to implementing any new fee structure that would result in requiring any Users to pay a fee for access to the Services, Beyond 12 will provide notice of the change and its impact on Users.
4. USER CONTENT
4.1 User Content.
“User Content” means any and all information and content that a User submits to, or uses with, the Services (e.g., information you include in your profile, content you upload into or create through use of a feature on Services, the content of any messages you create using in-App messaging features within the Services). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate Section 5. You further represent that, subject to any rights in your User Content that are retained by the Partner that authorizes your use of the Services (if you are a Partner-Student User), you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Beyond 12. Because you are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates Section 5. Beyond 12 is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
4.2 License.
Subject to any rights in your User Content that are retained by the Partner that authorizes your use of the Services (if you are a Partner-Student User), you hereby grant (and you represent and warrant that you have the right to grant) to Beyond 12 an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of performing the Services, including by making the User Content you upload into the messaging feature of the Services available to other Users or third party institutions with whom you elect to share such content and, if you are a Partner-Student User, with Your Partner. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Enforcement.
We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate Section 6 or any other provision of the Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 12, and/or reporting you to law enforcement authorities. If you are a Partner-Student User, you acknowledge and agree that we may take any of the actions described in this Section 4.3 at the direction of Your Partner.
4.4 Your Data.
Beyond 12 is subject to certain laws and regulations, some of which are described herein. Please visit our Privacy Policy for more information on how we collect, use, and safeguard Personal Information (as defined therein). If you are a Partner-Student User, our collection, use and safeguarding of personal information that you provide through the Services will be subject to any data protection obligations agreed to in the Partner Agreement we have with Your Partner and, where applicable, Your Partner’s privacy policy. Should you have any questions about the data protection policies of Your Partner or Your Partner’s implementation of the Services, contact them directly.
4.5 Feedback.
If you provide Beyond 12 with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Beyond 12 all rights in such Feedback and agree that Beyond 12 shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Beyond 12 will treat any Feedback you provide to Beyond 12 as non-confidential and non-proprietary. You agree that you will not submit to Beyond 12 any information or ideas that you consider to be confidential or proprietary.
5. ACCEPTABLE USE POLICY.
You agree not to: (a) use the Services to upload, transmit, display, or distribute any User Content that (i) violates 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; or (ii) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable; (b) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (c) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (d) abuse other users’ personal information that you receive through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (e) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (g) interfere with any other user’s use and enjoyment of the Services; (h) impersonate any person or entity, including any employee or representative of Beyond 12; or (i) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
6. BEYOND 12 COMMUNICATIONS
6.1 Generally.
You may have the opportunity to provide us with your phone number or e-mail address. By providing your phone number or email address to us, you consent to receive SMS/text messages, calls, and email communications from Beyond 12. Communications from us may include communications about your use of the Services.
6.2 SMS Communications.
If you provide your phone number through the Service, Beyond 12 may send you notifications by SMS, such as to alert you of a problem with your Account, or to communicate with you about our offerings. You may opt out of SMS communications from Beyond 12 by texting STOP to the telephone number that contacted you, or by contacting us at privacy@beyond12.org.Marks”) used on or in connection with any Beyond 12 Properties or Beyond 12 Services. Such Marks are the trademarks of Beyond 12 and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Beyond 12 Properties are the property of their respective owners.
6.3 Promotional Email Communications.
If you opt-in to receive marketing or promotional email communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.
6.4 Electronic Communications.
The communications between you and Beyond 12 use electronic means, whether you use the Services or send us emails, or whether Beyond 12 posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Beyond 12 in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Beyond 12 provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
7. INDEMNIFICATION
You agree to indemnify and hold Beyond 12 (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, (c) your violation of the Agreement, or (d) your violation of applicable laws or regulations. Beyond 12 reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Beyond 12. Beyond 12 will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. THIRD-PARTY LINKS AND APPLICATIONS; OTHER USERS
8.1 Third-Party Links and Applications.
The Services may contain links to third-party websites and services, and applications for third parties (collectively, “Third-Party Links and Applications”). Such Third-Party Links and Applications are not under the control of Beyond 12, and Beyond 12 is not responsible for any Third-Party Links and Applications. Beyond 12 provides access to these Third-Party Links and Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links and Applications. You use all Third-Party Links and Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links and Applications, the applicable third-party’s terms and policies apply, including the third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links and Applications.
8.2 Other Users.
Each User of the Services is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other users are solely between you and such users. You agree that Beyond 12 will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Services, we are under no obligation to become involved. Provided, however, we reserve the right to intercede in such disputes at our sole discretion.
9. RELEASE
You hereby release and forever discharge Beyond 12 (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including interactions with any other users of the Services or any Third-Party Links and Applications). If you are a California resident, you hereby waive California Civil Code 1542 in connection with the foregoing, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by Beyond 12 or for fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
10. DISCLAIMERS
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. WE HAVE NO LIABILITY FOR RESULTS IN CONNECTION WITH THE SERVICES OR THE ACTIONS OR OMISSIONS OF ANY USER. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT WHETHER PROVIDED BY BEYOND 12 OR ANOTHER USER OF THE SERVICES. BEYOND 12 AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE AND OUR SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO ANY PART OF THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
11. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BEYOND 12 OR OUR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR ANY PART THEREOF, EVEN IF BEYOND 12 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY ($50) DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THE AGREEMENT.SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BEYOND 12 AND YOU.
12. TERM AND TERMINATION
Subject to this section, the Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of the Agreement. Upon termination of your rights under the Agreement, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of the User Content associated with your Account from our live databases. Beyond 12 will not have any liability whatsoever to you for any termination of your rights under the Agreement, including for termination of your Account or deletion of your User Content. In addition, if you are a Partner-Student User and have accessed the Services under a Partner’s account, then the provision of certain Services may automatically terminate when the Partner Agreement Beyond 12 maintains with Your Partner expires or is terminated. Even after your rights under the Agreement are terminated, the following provisions of the Agreement will remain in effect: Sections 1.4, 1.5, 1.7, 2.3, and 3 - 15
13. COPYRIGHT POLICY
Beyond 12 respects the intellectual property of others and asks that Users do the same. In connection with our delivery of the Services, we have adopted and implemented a copyright policy that provides for the removal of any infringing materials posted to the Services and for the termination, in appropriate circumstances, of the accounts of Users who are repeat infringers of intellectual property rights, including copyrights. If you believe that a User is unlawfully infringing the copyright(s) in a work through its use of the Services, and wish to have the allegedly infringing material removed, provide the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) to our designated Copyright Agent:
a) your physical or electronic signature;
b) identification of the copyrighted work(s) that you claim to have been infringed;
c) identification of the material on the Services that you claim is infringing and that you request us to remove;
d) sufficient information to permit us to locate such material;
e) your address, telephone number, and e-mail address;
f) a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
g) a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Beyond 12’s designated Copyright Agent:
Designated Agent: Payal Patel
Address of Agent: 1625 Clay St. Suite 100, Oakland, CA 94612
Attn: Beyond 12 Operations.
Telephone: 415-498-0845
Fax: 415-762-5305
14. ARBITRATION CLAUSE AND CLASS ACTION WAIVER
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Beyond 12 arbitrate disputes against one another.Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 14 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND BEYOND 12 HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 14 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND BEYOND 12 BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 14 CAREFULLY.
14.1 Applicability of Arbitration Agreement.
Subject to the terms of this Arbitration Agreement, you and Beyond 12 agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Beyond 12 may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Beyond 12 may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
14.2 Informal Dispute Resolution.
There may be instances when a Dispute arises between you and Beyond 12. If that occurs, Beyond 12 is committed to working with you to reach a reasonable resolution. You and Beyond 12 agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Beyond 12 therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which Informal Dispute Resolution Conference must occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Beyond 12 that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to info@Beyond12education.com or regular mail to our offices located at Beyond 12 Education Inc., 1625 Clay St. Suite 100, Oakland, CA 94612 Attn: Beyond 12 Operations. The Notice must include: (a) your name, telephone number, mailing address, email address associated with your account (if you have one); (b) the name, telephone number, mailing address and email address of your counsel, if any; and (c) a description of your Dispute.
The Informal Dispute Resolution Conference will be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement will prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines will be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.3 Waiver of Jury Trial.
YOU AND BEYOND 12 HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Beyond 12 are instead electing that all Disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.4 Waiver of Class and Other Non-Individualized Relief.
YOU AND BEYOND 12 AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 14.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor will it, affect the terms and conditions under the subsection 14.9 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Beyond 12 agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and may be litigated in the state or federal courts located in Oakland, California. All other Disputes will be arbitrated or litigated in small claims court. This subsection does not prevent you or Beyond 12 from participating in a class-wide settlement of claims.
14.5 Rules and Forum.
These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Beyond 12 agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request will also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 14.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. You and Beyond 12 agree that all materials and documents exchanged during the arbitration proceedings will be kept confidential and will not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
14.6 Arbitrator.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 14.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
14.7 Authority of Arbitrator.
The arbitrator will have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (a) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, will be decided by a court of competent jurisdiction and not by an arbitrator; (b) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees will be decided only by a court of competent jurisdiction and not by an arbitrator; (c) all Disputes about whether either party has satisfied any condition precedent to arbitration will be decided only by a court of competent jurisdiction and not by an arbitrator; and (d) all Disputes about which version of the Arbitration Agreement applies will be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator will have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.8 Attorneys’ Fees and Costs.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Beyond 12 need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
14.9 Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, you and Beyond 12 agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Beyond 12 by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS will (a) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS will appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees will be paid by Beyond 12.
You and Beyond 12 agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision will in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
14.10 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Beyond 12 Education Inc., 1625 Clay St. Suite 100, Oakland, CA 94612 Attn: Beyond 12 Operations, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Beyond 12 account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.11 Invalidity, Expiration.
Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect. You further agree that any Dispute that you have with Beyond 12 as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
14.12 Modification.
Notwithstanding any provision in these Terms to the contrary, we agree that if Beyond 12 makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Beyond 12 at: 1625 Clay St. Suite 100, Oakland, CA 94612 Attn: Beyond 12 Operations, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Beyond 12 will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
15. GENERAL
15.1 App Stores.
You acknowledge and agree that the availability of the App and the Services that rely on the App is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Beyond 12 and not with the App Store. Beyond 12, not the App Store, is solely responsible for the Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). To use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the App and related Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it. You acknowledge that neither Apple nor Google (each, an “App Provider”) has any obligation whatsoever to furnish any maintenance and support services with respect to the App Store -Sourced Application. In the event of any failure of the App Store-Sourced Application to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App Store-Sourced Application to you and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App Store-Sourced Application. As between Beyond 12 and the App Provider, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Beyond 12. You and Beyond 12 acknowledge that, as between Beyond 12 and the App Provider, the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App Store-Sourced Application or your possession and use of the App Store-Sourced Application, including, but not limited to: (a) product liability claims; (b) any claim that the App Store-Sourced Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You and Beyond 12 acknowledge that in the event of any third-party claim that the App Store-Sourced Application or your possession and use of the App Store-Sourced Application infringes that third party’s intellectual property rights, as between Beyond 12 and the App Provider, Beyond 12, not the App Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store-Sourced Application.
15.2 Assignment.
The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Beyond 12’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.3 Force Majeure.
Beyond 12 shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.4 Governing Law.
THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. To the extent the parties are permitted under the Agreement to initiate litigation in court, both you and Beyond 12 agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in in Oakland, California.
15.5 Notice.
Where Beyond 12 requires that you provide an email address, you are responsible for providing Beyond 12 with your most current email address. In the event that the last email address you provided to Beyond 12 is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Beyond 12’ dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Beyond 12 at the following address: 1625 Clay St. Suite 100, Oakland, CA 94612 Attn: Beyond 12 Operations. Such notice will be deemed given when received by Beyond 12 by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.6 Waiver.
Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.7 Severability.
If any portion of the Agreement is held invalid or unenforceable, that portion will be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.
15.8 International Users.
The Site and other parts of the Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Beyond 12 intends to announce such services or content in your country. The Services are controlled and offered by Beyond 12 from its facilities in the United States of America. Beyond 12 makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15.9 Export Control.
The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Beyond 12, or any products utilizing such data, in violation of the United States export laws or regulations.
15.10 Copyright/Trademark Information.
Copyright © 2024, Beyond 12 Education, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You may not use any Mark without our prior written consent or the consent of the third party that owns the Mark. All goodwill generated from use of any Marks owned by Beyond 12 will inure to Beyond 12’s benefit.
15.11 Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to the Services, please contact us at the contact information below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. In addition, in accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
15.12 Entire Agreement.
The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
15.13 Contact Information:
Beyond 12 Education, Inc.
1625 Clay St. Suite 100,Oakland, CA 94612
Attn: Beyond 12 Operations.
info@beyond12.org
