Effective Date July 1, 2021 (see archived versions)
TABLE OF CONTENTS
- 1. This is a Binding Agreement!
- 1.1 Find the terms that apply to you
- 1.2 Changes
- 1.3. Who we are and how to reach us
- 1.4 Who you are
- 1.5 What we are
- 2. Dispute Resolution including ARBITRATION
- 3. Acceptable Use Policy
- 4. Talking about each other
- 5. Payments, fees, renewals and the like
- 5.1 You pay all applicable charges.
- 5.2 We provide electronic receipts, invoices, and statements.
- 5.3 You have 180 days to tell us we made a mistake
- 5.4 Purchase orders
- 5.4. Points—what and why
- 5.5 Renewals (automatic and otherwise)
- 5.6 Upgrades, downgrades, and refunds
- 5.7 All sales are final.
- 5.8 Contact us first to avoid chargebacks of dispute fees
- 6. What you can do with Boom Cards
- 7.1 Account management
- 8. Parents
- 9. We are FERPA compliant
- 10. Government Agency Optional Terms of Service
- 11. Data is stored in the United States
- 12. Account ownership
- 13. Security and Breach Response
- 14. Representations and Warranties
- 15. Additional Terms
1. This is a Binding Agreement!
IT CONTAINS A BINDING ARBITRATION PROVISION AND A WAIVER OF CLASS ACTION RIGHTS THAT AFFECTS YOUR LEGAL RIGHTS. EITHER YOU OR WE MAY ENFORCE THIS AGREEMENT. GOVERNMENT ENTITIES MAY SIGN AN AGREEMENT TO REJECT THE ARBITRATION CLAUSE.
1.1 Find the terms that apply to you
The Notices and Terms are listed in the order of precedence. That means, if there is a conflict between the terms of one or more documents, the term in the document higher on the list (with the lower numeral) will prevail over the terms in the higher listed document.
- Benefit from our Student Privacy Notice
- Student accounts are subsidiaries of Educator or Entity accounts.
1.1.2 Schools, Medical Providers, and Businesses purchasing as an "Entity" are bound by
- Any separately signed Data Privacy Addendum or Agreement
- Any separately negotiated and signed Service Agreement, Software License, or Master Agreement
- The Boom Learning Privacy Notices
- The Boom Learning Terms of Service
- Any School provided Purchase Order Terms and Conditions
1.1.3 Educators purchasing as an individual are bound by
- The Entity terms if your district has an Entity agreement
- The Boom Learning Privacy Notices
- The Boom Learning Terms of Service
1.1.4 Public Publishing Authors (Sellers) are bound by
- The Public Author Terms of Service
- The Boom Learning Privacy Notices
- The Boom Learning Terms of Service
If you do not accept all the terms, do not use Boom Learning.
We will not make material changes to the terms without first providing notice via our newsletter service. Mere reorganization of components between cross-referenced documents nor the addition of detail previously stated in our FAQs that does not alter fundamental commitments does not constitute a material change. 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 of 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 products.
1.3. Who we are and how to reach us
We (also “our” and “us”) are Omega Labs Inc. dba Boom Learning, and our successors, assigns, and subsidiaries. Legal notices must be sent to 9805 NE 116th St Suite 7198, Kirkland WA 98034 or firstname.lastname@example.org.
1.4 Who you are
You” means the adult Educator, Entity, or Public Author who creates an account with us. We are a service provider acting on your behalf to process data for your educational purposes. "Entity" includes schools, hospitals, therapy practices, and educational services business, whether for profit or non-profit, and includes sole proprietor businesses.
1.4.1 You promise that you are an adult and you will comply with rules for interacting with minors.
When you accept these terms, you represent and agree that you are an adult and are not a minor. Boom Learning is a platform marketed and directed to adult users for use with students, who may be minors. Adults create accounts for students under their charge. See our Privacy Notice for rules regarding your use of Boom Learning with minors.
1.4.2 You agree that we can verify what you tell us.
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 or your identity.
1.4.3 Authorizations and account ownership
You represent and warrant that you have permission and authorization, as required by law or policy, from your school and affected parents, guardians, and students, to bind students and your school to the terms. If you purchase an account with out-of-pocket funds for use at an entity with students, Boom Learning agrees that the school is a beneficiary of the terms. If you are an entity, a person associated with your account must have authority to bind the entity to this Agreement.
1.5 What we are
- is a platform at wow.boomlearning.com for creating interactive, self-grading teaching resources (“Boom Cards“), including the ability to incorporate “assets“, such as images, artwork, fonts, video, and sound, into those Boom Cards, (the creation platform is called the “Studio“),
- offers Public Authors tools for selling and sharing Boom Cards on other marketplaces (“External Marketplaces“),
- includes a marketplace for obtaining and listing Boom Cards and assets (the “Store“),
- provides educator tools for managing and assigning Boom Cards (“Classes“) and reviewing student performance (“Reports“),
- offers web apps (https://boom.cards) and native apps (Amazon, the App Store, and Google Play) for playing Boom Cards. Mobile apps are also subject to the rules and agreements of their respective app stores.
2. Dispute Resolution including ARBITRATION
2.1 Negotiations first
So if we have a falling out, before calling in the big guns (aka arbitration), you and we shall attempt in good faith to resolve all disputes by negotiation between representatives with the authority to settle the controversy.
2.2 Mediation or Copyright Claims Board second
If negotiations do not resolve the matter, and the matter falls within the jurisdiction of the Copyright Claims Board, the matter will be referred to the Copyright Claims Board for resolution.
If negotiations do not resolve the matter, and 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 proceed to the arbitration procedures in the next paragraph.
2.3 Arbitration and Class Action Waiver
Government Agencies can opt out of Arbitration, change choice of law, and change venue by completing and returning our Government Agency Terms of Service.
If we get to the stage of arbitration, any dispute, controversy or claim, arising out of or relating to these terms or to your purchase or use of Boom Cards or Boom Learning 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. By any, we really mean any, include disputes over whether we even formed an agreement, how to interpret our agreement, whether or how there was a breach, whether or how there was a termination, and even whether or not claims are arbitrable.
You and we agree that the laws applied will be the laws of the State of Washington. 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.
2.5 You and we have 180 days to bring a dispute
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 mediation shall toll this limitations period from the date of initiation through the date of the completion of the mediation.
3. Acceptable Use Policy
3.1 Key acceptable use policy requirements
Failure to conform to these acceptable uses can result in your account being suspended or locked out. You will
- only disclose the private information of others that you have a right to disclose and to authorized persons:
- only incorporate the intellectual property of others into materials you make or sell with permission;
- give credit where you are required to give credit;
- comply with all applicable laws that apply;
- access Boom Learning only through pages we make publicly available using your authorized login credentials;
- ensure messages and electronic instructions delivered to us do not include malicious code or otherwise attack our systems;
- create, select, share and deliver to students materials that distinguish fact from opinion and that are factually accurate (supported by verifiable and substantial evidence);
- never include any material that contains advertising or marketing content in materials intended for delivery to K-12 students;
- review all materials created, selected, shared and delivered to students to ensure they do not contain materials that biased, offensive, inappropriate, hateful, indecent, harassing or unlawful, considered in light of the age of the students who are the intended users of the materials (as judged solely by us).
Do not engage in any conduct in any forum hosted by Boom Learning that is harassing, threatening, fraudulent, inappropriate, hateful, pornographic, defamatory, obscene, offensive, indecent or unlawful (as judged by solely by us).
3.2 Bad choices have consequences
We do not have an obligation to monitor our sites and apps, but we do have a right to do so. We proactively edit and depublish Boom Cards that violate our acceptable use policy. 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 acceptable use policy or of this agreement, without notice. We reserve the right to provide information to third parties, such as our authors, schools, law enforcement, supervisory authorities, 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 and you will forfeit your current membership. If we terminate your account, you will not establish a new account without our permission. You will be required to pay anew to reopen an account.
3.3 Special rules for video
You may not embed any video in a Boom Cards deck that contains an advertisement. You are responsible for watching videos in full before embedding and ensuring that no advertisements are displayed. You are responsible for updating your videos if your hosting service changes its rules to add advertisements to your video. For Vimeo, you must have a premium Vimeo account so that your users do not see ads. You may not collect personally identifiable information from any user via a Vimeo link. You must turn off all marketing settings that collect information before including a Vimeo link in a deck.
3.4 You can report infringement of copyrights and we will take action.
The Digital Millennium Copyright Act provides specific guidelines for reporting infringement of your copyrights 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.
You can also report abuse or infringement informally by clicking Reviews and Report for the Boom Cards deck at issue. If you want to contact us about abuse of our acceptable use policy, trademark infringement or other matters, do not send a DMCA notice, use the Report tool for the deck or send a proper message providing sufficient information for us to identify your concern and an actionable requested remedy to email@example.com. If you add patent or trademark claims to your DMCA notice we will reject it as nonconforming and will require you to submit again. We prefer a less formal, more flexible approach than the DMCA to arriving at a mutually agreeable messaging to give to teachers about acceptable use of your materials, but if you must use the DMCA, we expect you to get it right.
3.5 We can’t make everyone behave all the time.
Before assigning any material, you should inspect it for suitability. If upon inspection it does not conform to your expectations, you may request a refund by identifying the deck title, deck author, and a brief statement of the issue with the deck. Refund requests must be within reasonable proximity of the purchase date. We will grant reasonable refund requests, but reserve the right to refuse for customers who abuse the process, as determined in our sole discretion.
You will see content on Boom Learning that was posted by our authors and third parties. 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 author or third party content. We are not liable to you if you rely on author or third-party content or if you suffer damage from an author 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.
4. Talking about each other
4.1 Chat us up, with credit
Please talk about Boom Cards. Be sure to give credit where credit is due. Don’t claim as your own things that are not. If you post an image of Boom Learning or Boom Cards to any social media site available to the public, you grant Boom Learning and/or the author permission to repost that image with appropriate credit to you.
4.2 Feedback and ratings
In the event you provide us or an author with suggestions, ideas or other feedback, we or the author will be free to use that feedback in any manner without restriction and without owing you money or compensation. Ratings you give must be based on using the resource for its intended purpose.
4.3 Boom learning names and logos
Boom Learning names and logos are the trademarks, trade names and/or service marks of Boom Learning. Our authors’ names and logos are the trademarks, trade names and/or service marks of our authors. You may use our names descriptively in reviews. Use of Boom Learning and Boom Cards names and logos must comply with our guidelines. For all other uses, ask for written permission from us or our authors first.
4.4 Entity images or likenesses
Boom Learning agrees that for entities, absent the entity’s prior written consent, it will not have any rights to (a) use any trademarks of the entity, including logos or emblems or (b) advertise or claim that the school endorses Boom Learning’s services. Boom Learning may use an entity as a business reference.
4.5 Social reposting
You agree that Boom Learning may repost any blog, social media post, or other post you make as part of our efforts to promote your Boom Cards and/or Boom Learning. This includes posts by entities.
5. Payments, fees, renewals and the like
5.1 You pay all applicable charges.
Prices exclude taxes and currency exchange settlements unless stated otherwise. You are responsible for paying taxes or other charges. If your account is canceled, you are obligated to pay all charges made to your account before the cancellation was effective. Failure to provide valid payment may result in you being banned. Being banned does not absolve you of responsibility for amounts in arrears.
5.2 We provide electronic receipts, invoices, and statements.
We provide you with electronic receipts, invoices, and statements. You will receive email receipts from the payment processor you selected. You can find a record of your purchases in My Settings. These are the only receipts, invoices, and statements we provide.
5.3 You have 180 days to tell us we made a mistake
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 180 days after the error appeared. If you do not inform us within 180 days, 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.
5.4 Purchase orders
You may use purchase orders to buy points and memberships only through our Estimate Builder. Minimum purchase requirements apply. Terms and conditions in a Purchase Order are rejected to the extent they conflict with or supersede other applicable terms as stated in Paragraph 1.1.2. All additional discount terms over those in the estimate are rejected. Net payment terms on purchase orders are accepted. Entire agreement clauses in purchase orders are rejected to the extent that they invalidated the other applicable terms set forth in Paragraph 1.1.2. Failure to pay the invoice for memberships shall result in downgrading of the memberships and removal of points. Where users already have accounts with time remaining on them and a school purchases a membership for that account, we will credit the difference either in days or points, in our sole discretion.
5.4. Points—what and why
Points purchased with US dollars. Points can only be used to redeem Boom Cards and assets for making Boom Cards from Boom Learning. They enable transactions that would otherwise be cost prohibitive for us to provide. If you have insufficient points in your account to check out products you will be prompted to purchase points first. You will then go back and check out the products.
We will automatically renew your account from your unspent points balance if you have not timely renewed and have not downgraded to a free account. We may spend your points or enter a negative points balance to obtain satisfaction of a debt you owe us, including debts for dispute fee chargebacks and, for our public authors, refunds you owe use or external service fees.
Points are non-refundable and non-transferable. Points do not constitute a personal property right and have no value outside Boom Learning. Points have no cash value and cannot be exchanged for cash. If you delete an account or we delete a stale account that is no longer being used and the account has points in it at the time of deletion, all points are forfeit and are unrecoverable. Please read our Privacy Notice for when we delete stale accounts. 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 were obtained fraudulently. We may charge you for the value you obtain by fraudulently using points. A single teacher may directly purchase more than 100,000 unused points at any time. Schools can only purchase a maximum of 200,000 points via payment card. All other purchase values require purchase by purchase order.
5.5 Renewals (automatic and otherwise)
You agree that we may automatically extend or renew your account as specified below unless you downgrade your membership or request a refund of unused purchased points prior to the renewal date.
Renewals work this way
- We will send you by email a notice that your account is expiring if you have a membership (whether paid or granted as a free promotion). We will explain how to downgrade your membership in that notice.
- The notice will state that any unused points you have will be automatically applied by us to extend your membership on a pro-rata basis upon expiration.
- If you are subject to extension by having a points balance, to avoid points expenditure you must go to My Settings before the expiration date and downgrade your membership to a free tier.
We renew your account from the date it expired, not the date of the renewal. There are costs to maintaining your account even if you are not actively using it.
5.6 Upgrades, downgrades, and refunds
Downgrades and upgrades are immediate. Membership purchases are non-refundable except at our sole discretion (such as you accidentally opening and purchasing 2 accounts).
5.7 All sales are final.
Unless otherwise provided, all purchases and redemptions are final and nonrefundable. We may, at our sole discretion issue refunds, such as for duplicate purchases. 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. We can only issue refunds for purchases made directly from Boom Learning. Direct all other refund requests to the site from which you made the purchase.
5.8 Contact us first to avoid chargebacks of dispute fees
You must contact us to request a refund. The best way to do so is when logged in from the Help Center. Please select Customer Service & Sales (including refunds) as your request type for fastest service. If you dispute a charge without contacting us or requesting a refund first, we reserve the right to charge you the dispute fee, which can be $15 to $20 per dispute. Users who abuse the dispute process will be locked out of their accounts. When a charge is disputed, we will reclaim the purchased items (refunding decks, removing points and expiring items). If the dispute was not valid (for example you spent the points or continued using the membership) but is nonetheless resolved against us, you will be required to pay the dispute charge before you can continue using your account. We may reclaim the dispute fee by removing points, adding a negative points balance, and/or returning redemptions until there are sufficient points to pay your fee. If the dispute is valid because you used a payment you were not authorized to use, you will be required to pay the dispute fees to regain access to your account.
6. What you can do with Boom Cards
6.1 What you can do
If you have a current account (either free or a paid membership) you can
- Redeem them.
- Assign them to your students. Fastplay Pins are available for all accounts. Other methods require a paid membership.
- Display and perform with your students or demonstrate them to others associated with your school.
- Set Custom Play settings for Hyperplay and assigned decks.
- Give feedback, rate them, and contact the author.
- Print them for your students.
- Create them (subject to limits based on your account tier).
- Share or transfer ones you’ve created with your team.
Boom Cards are owned by their authors. You receive a right to use them. Authors reserve the right to modify Boom Cards after purchase to correct errors and omissions.
6.3. What you can’t do with Boom Cards.
You can’t use them offline; they require a connection to the internet (wired, wireless, or cellular). You may not extract or attempt to extract images, fonts, video, sound or other elements from Boom Cards using any means. Attempting to do so can result in you being banned from our system and/or subject to civil or criminal action against you. You cannot export Boom Cards decks. You may not share purchased Boom Cards with others through account sharing or other methods. You may not share decks or bundles that you purchased with other users without additional licenses. If we catch you doing it we will require you to make the sellers whole financially or forfeit your account, including all decks therein. Don’t steal from fellow educators. You may not use them for a commercial purpose without the author’s consent.
6.4 Using “assets” (you know: images, fonts, sounds, videos, gifs and more)
Use assets you made yourself or that you have permission to use. You can purchase assets for use from the Boom Store. You can also purchase them from a variety of other locations. If you do so, make sure that your permission allows use with Boom Cards. We take steps to prevent right click saving of images, so many artists will say “yes” that would otherwise say “no” to digital use. For your convenience, we keep a list of people who have said “yes” to Boom Cards use. Don’t use images of living people unless you have their permission (a right of publicity clearance). For dead people who have been dead less than 70 years, the question gets more complicated and you should contact an attorney for guidance.
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 an author on Boom Learning.
6.5 Assets purchased from the Boom Store
When you buy assets from the Boom Store, you get permission to include those assets in decks you create and to use assets included in decks with your students. You may modify assets to the extent allowed by the tools included in the Boom Learning platform. Asset authors may provide more generous terms to you. If so, their terms apply.
7.1 Account management
7.1. Accounts and memberships
You must have an account to use Boom Cards. There are free accounts and paid member accounts. All memberships are annual, pre-paid and non-refundable. Free accounts allow you to play purchased Boom Cards using Fastplay Pins. Paid member accounts allow you a number of benefits, including the ability to track student progress based on the number of seats you purchased, create your own Boom Cards, and get special discounts. Boom Learning reserves the right to change the terms of memberships at any time in our discretion. Changes will take effect for you on renewal.
7.2 Account deletion and closure
DELETION IS IRREVERSIBLE. AGAIN DELETION IS NOT REVERSIBLE.
If you have unspent purchased points you must request a refund before deleting your account (or before we delete it automatically as a stale account). Once an account is deleted, points are forfeit and non-refundable. Membership is also non-refundable.
You may add and delete students. When you delete a student, you delete the record of that student’s past work. To protect student privacy, we take you at your word when you issue a deletion instruction.
To minimize privacy risk, we delete stale accounts according to the schedule in our Privacy Notice. A teacher who deletes a school purchased account without the permission of the school is liable to the school for the loss. Schools may authorize us or a teacher to delete a school-purchased account. We may, in our discretion, close or suspend your account at any time for any reason, with or without notice. You may close your account using Delete from My Settings at any time, without notice to us. Account closure is permanent and irreversible – decks created but not sold are permanently destroyed.
7.4 Account sharing is not allowed
Boom Cards are licensed to a single account operated by a single individual. Each individual, whether their account was purchased directly or by an entity, must have his or her own account. Use our colleagues feature to share students with co-workers.
Fastplay pins allow you to interact with students with no tracking of student performance. Fastplay pins expire and must be regenerated. All other assignment methods are allowed for you and the number of your students that your account tier allows. We may modify the number of students a tier is allowed at any time, at our sole discretion.
7.5 Referrals, rewards, and special offers
From time to time, we offer paid referrals and/or other special offers. We do not disclose who clicked a referral link to the referring party. You can find our terms for any current offers here. We are not obligated to offer rewards, referral fees, or any other special offer. We can change or discontinue any referral, reward, or special offer program at any time, at our sole discretion. In the absence of a specific offer, you should understand that we have no obligation to compensate you for giving a review, referring a customer, or otherwise spreading the word.
Parents and legal guardians may review student accounts from the student dashboard. Parents must contact the Educator for a password reset for a student account, to correct an error in a student record, or to request an export of student performance records. We must have authorization from the Educator or a legal authority to fulfill parent requests. Please see our Student Privacy Notice.
9. We are FERPA compliant
We are Family Education Rights and Privacy Act (FERPA) compliant. Please see our Privacy Notice. Boom Learning does not require student personally identifiable information to serve its educational purpose.
10. Government Agency Optional Terms of Service
If you are a government or public entity required by law to use the laws of your state for choice of law, to reject arbitration, or to select local venue, please complete and return our Government Agency Terms of Service.
11. Data is stored in the United States
Please see our Privacy Notice for Data Exporters for details for European Economic Area, Swiss, UK, and Canadian customers.
12. Account ownership
12.1 First purchaser rule
We use a first purchaser rule to determine account ownership. If an individual buys the account, it belongs to the individual for his or her lifetime and cannot be transferred to another individual. Individuals who change entities must delete student records relating to the prior entity. Entities can pay for memberships and points in individual accounts, but doing so will not change the ownership of the account. If an individual previously purchased an account with out-of-pocket funds and the entity purchases an extended or upgraded membership for that individual, account ownership will be deemed to remain with the individual and is not transferred to the entity. Likewise, points purchased by an entity for use in an account originally purchased by an individual shall be deemed to be owned by the individual.
If an entity buys an account, it belongs to the entity and can be transferred to another individual at that entity. The entity may gift an account to an individual. An individual who purchases Boom Cards in an entity account is making a gift of those Boom Cards to the entity.
Any attempt to seize or transfer ownership inconsistent with this section shall be null and void unless supported by a notarized statement signed by both parties stating the correct ownership of the account or a court or arbitral order.
12.2 Entity accounts are licensed to a classroom or provider
If an entity purchases an account, the entity owns the account and is agreeing to these terms. Entity accounts belong to the classroom or provider for which they were purchased. Entities may transfer accounts they purchase between individuals if a provider changes level, leaves the entity, or goes on leave.
13. Security and Breach Response
Details are in our Privacy Notice.
14. Representations and Warranties
14.1 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, and (e) do not advertise to students.
14.2 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 authors’ 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 authors, 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.
14.3 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 Authors may change, suspend or discontinue Boom Learning or any product at any time for any reason, with or without notice. If we discontinue services, your resources may not be available to you. You agree that neither we nor our Public Authors shall be liable to you or any third party if Boom Learning or any product is changed, suspended or discontinued.
14.4 Our liability to you is limited
LIMITATION OF LIABILITY: We work hard to make sure our system is available, but there are a substantial number of factors beyond our control in providing the services, including browser updates, filtering software, entity IT settings and more. As a result, we can’t guarantee that any or all feature will always work or that Boom Learning will be continuously available to you or your students.
We and our suppliers are not liable to you for any errors or inaccuracies you find 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 the 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.
15. Additional Terms
15.1 For your attorney (and all armchair attorneys)
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 account.
15.2 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.
15.3 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. Terms that are intended to survive for a period after termination shall also survive for the designated period (such as payout holdbacks for refunds).
15.4 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 and provided that such successor or purchaser agrees to be bound by the terms. 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.
15.5 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, then 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.
15.6 English Language
It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.