End User License Agreement
THIS END USER LICENSE AGREEMENT (“LICENSE”) SET OUT BELOW IS BETWEEN YOU AND OPPORTUNITY EDUCATION FOUNDATION (“OE”), AND GOVERNS YOUR USE OF THE QUEST!™ APPLICATION, QUESTMAKER™ WEB APPLICATION, QUESTCOMMUNITY™ WEB APPLICATION, AND FEEDBACK FORWARD™ WEB APPLICATION SERVICES AND SOFTWARE (COLLECTIVELY, THE “QUEST APPLICATION PRODUCTS”). TO AGREE TO THESE TERMS, CLICK “AGREE.” IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE,” AND DO NOT USE THE QUEST APPLICATION PRODUCTS.
a. This License is applicable to any user of the Quest Application Products (“End-User” or “you”).
b. If you are entering this License on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its End-Users and its affiliates to this License. In that cases, the terms “you” or “your” shall also refer to such entity, its End-Users, and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this License, you may not use the Quest Application Products. You acknowledge that this License is a contract between you and OE, even though it is electronic and is not physically signed by you or OE, and it governs your use of the Quest Application Products.
c. By accessing or using the Quest Application Products, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You represent that you are fully able and competent to enter into and comply with the terms and conditions in this License. The Quest Application Products are not directed to children under 13, so if you are under 13 years of age, you are not permitted to access or use the Quest Application Products. If OE becomes aware that you are using the Quest Application Products even though you are under 13, OE will deactivate your account.
e. The OE software, and any third party software, documentation, interfaces, content, fonts and any data accompanying this License whether in read-only memory, on any other media or in any other form (collectively the “OE Software”) are licensed, not sold, to you by OE for use only under the terms of this License. OE and/or OE’s licensors retain ownership of the OE Software itself and reserve all rights not expressly granted to you.
f. OE at its discretion, may make available future upgrades or updates to the OE Software for your compatible computer or device. The OE Software upgrades and updates, if any, may not necessarily include all existing software features. The terms of this License will govern any software upgrades or updates provided by OE to the original OE Software product, unless such upgrade or update is accompanied by a separate license in which case you agree that the terms of that license will govern such upgrade or update.
2. Scope of license This License granted to you for the OE Software by OE is limited to a non-transferable license to use the OE Software on any compatible device that you own or control and as permitted by the Usage Rules set forth in Section 4.d. of the Quest Application Terms and Conditions (the “Usage Rules”). You may not rent, lease, lend, sell, redistribute or sublicense the OE Software. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the OE Software, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the OE Software). Any attempt to do so is a violation of the rights of the OE and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the License will govern any upgrades provided by OE that replace and/or supplement the original OE Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3. Consent to use of data You agree that OE may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the OE Software. OE may use this information to improve its products or to provide services or technologies to you.
4. Termination This License is effective until terminated by you or OE. Your rights under this License will terminate automatically without notice from OE if you fail to comply with any term(s) of this License. Upon termination of the License, you shall cease all use of the OE Software, and destroy all copies, full or partial, of the OE Software.
5. SERVICES; THIRD PARTY MATERIALS
a. The OE Software may enable access to OE’s and third party services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and that you accept additional terms of service.You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that OE shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
b. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that OE is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. OE does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
c. You agree that any Services may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that OE is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.
d. In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the OE Software or Services are not available in all languages or in all countries. OE makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. OE, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will OE be liable for the removal of or disabling of access to any such Services. OE may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
6. NO WARRANTY YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE OE SOFTWARE (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE OE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE OE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE OE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE OE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE OE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OE OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE OE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL OE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE OE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF OE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall OE’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
8. Restrictions You may not use or otherwise export or re-export the OE Software except as authorized by United States law and the laws of the jurisdiction in which the OE Software was obtained. In particular, but without limitation, the OE Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the OE Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law.
9. Governing Law The laws of the State of Nebraska, excluding its conflicts of law rules, govern this license and your use of the OE Software. Your use of the OE Software may also be subject to other local, state, national, or international laws.
a. What Personal Information We Collect. Below are some examples of the types of personal information OE may collect:
- When you create an Account, download a software update, register for alerts, contact us or participate in an online survey, we may collect a variety of information, including your name, mailing address, phone number, email address, contact preferences, and credit card information.
- We may collect learning activity data such as quests activated, activities completed, quests and journeys completed, communication between students and teachers, student work products or artifacts, teacher feedback on student work products, student notes, student engagement information, and other data.
b. How We Use the Personal Information We Collect. Below are some examples of how OE may use the collected personal information:
- The personal information we collect allows us to keep you posted on OE’s latest Service announcements and software updates.
- We also use personal information to help us create, develop, operate, deliver, and improve our products, services, and content.
- From time to time, we may use your personal information to send important notices, such as communications about changes to our terms and policies. Because this information is important to your interaction with OE, you may not opt out of receiving these communications.
- We may also use personal information for internal purposes such as auditing, data analysis, and research to improve OE’s products, services, and customer communications.
2. Collection and Use of Non-Personal Information. We also collect data in a form that does not, on its own, permit direct association with any specific individual. We may collect, use, transfer, and disclose non-personal information for any purpose. The following are some examples of non-personal information that we collect and how we may use it:
- We may collect information such as occupation, language, zip code, area code, unique device identifier, referrer URL, location, and the time zone where an OE Service or product is used so that we can better understand customer behavior and improve our products, services, and advertising.
- We may collect and store details of how you use our services, including search queries. This information may be used to improve the relevancy of results provided by our services. Except in limited instances to ensure quality of our services over the Internet, such information will not be associated with your IP address.
As is true of most internet services, we gather some information automatically and store it in log files. This information includes Internet Protocol (IP) addresses, browser type and language, Internet service provider (ISP), referring and exit websites and applications, operating system, date/time stamp, and clickstream data. We use this information to understand and analyze trends, to administer the Service, to learn about user behavior on the Service, to improve our product and services, and to gather demographic information about our user base as a whole. OE may use this information in our marketing and advertising services.
In some of our email messages, we use a “click-through URL” linked to content on the OE website. When you click one of these URLs, they pass through a separate web server before arriving at the destination page on our website. We track this click-through data to help us determine interest in particular topics and measure the effectiveness of our customer communications. If you prefer not to be tracked in this way, you should not click text or graphic links in the email messages.
Pixel tags enable us to send email messages in a format customers can read, and they tell us whether mail has been opened. We may use this information to reduce or eliminate messages sent to customers.
4. Disclosure to Third Parties. At times OE may make certain personal information available to strategic partners that work with OE to provide products and services, or that help OE market to potential users. Personal information will only be shared by OE to provide or improve our services, products and advertising; it will not be shared with third parties for their marketing purposes.It may be necessary—by law, legal process, litigation, and/or requests from public and governmental authorities within or outside your country of residence—for OE to disclose your personal information. We may also disclose information about you if we determine that for purposes of national security, law enforcement, or other issues of public importance, disclosure is necessary or appropriate. We may also disclose information about you if we determine that disclosure is reasonably necessary to enforce our terms and conditions or protect our operations or users. Additionally, in the event of a reorganization, merger, or sale we may transfer any and all personal information we collect to the relevant third party.
5. Protection of Personal Information. OE takes the security of your personal information very seriously. OE services protect your personal information during transit using encryption such as Transport Layer Security (TLS). When your personal data is stored by OE, we encrypt your password and may use other data security protocols.When you use some OE products, services, or applications or post on an OE forum, chat room, or social networking service, the personal information and content you share is visible to other users and can be read, collected, or used by them. You are responsible for the personal information you choose to share or submit in these instances. Please take care when using these features.
7. Access to Personal Information. You can help ensure that your contact information and preferences are accurate, complete, and up to date by logging in to your Account. For other personal information we hold, we will provide you with access for any purpose including to request that we correct the data if it is inaccurate or delete the data if OE is not required to retain it by law or for legitimate business purposes. We may decline to process requests that are frivolous/vexatious, jeopardize the privacy of others, are extremely impractical, or for which access is not otherwise required by local law.
8. Children. We understand the importance of taking extra precautions to protect the privacy and safety of children using OE’s Service and products. Accordingly, we do not knowingly collect, use or disclose personal information from children under 13, or equivalent minimum age in the relevant jurisdiction, without verifiable consent of a parent or legal guardian. If we learn that we have collected the personal information of a child under 13, or equivalent minimum age depending on jurisdiction, without first receiving verifiable parental consent, we will take steps to delete the information as soon as possible. Children under the age of 13, or equivalent minimum age in the relevant jurisdiction, are not permitted to create their own Account without verifiable consent of a parent or legal guardian. If at any time a parent or legal guardian needs to access, correct, or delete data associated with their child’s Account, they may contact OE at email@example.com.
9. Location-Based Services. To provide location-based services in connection with the Service, OE may collect, use, and share precise location data, including the real-time geographic location of your computer or device. Where available, location-based services may use GPS, Bluetooth, and your IP Address, along with crowd-sourced Wi-Fi hotspot and cell tower locations, and other technologies to determine your devices’ approximate location. Unless you provide consent, this location data is collected anonymously in a form that does not personally identify you and is used by you to provide and improve location-based products and services.
10. Third-Party Sites and Services. OE websites, products, applications, and services may contain links to third-party websites, products, and services. Information collected by third parties, which may include such things as location data or contact details, is governed by their privacy practices. We encourage you to learn about the privacy practices of those third parties.
QuestMaker™ Platform Quest Designer Agreement
This Platform Quest Designer Agreement (“Agreement”) is made effective as of the date you accept the terms of the Agreement (“Effective Date”), by and between Opportunity Education Foundation, a non-profit Iowa corporation located at 10156 L Street, Omaha, Nebraska 68127, (“OE”) and the Quest Designer (“Designer” or “You”). OE and Designer may be referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, OE has created a digital platform and service (the “QuestMaker Platform”) to allow designers to create and manage software modules (“Quest(s)”) for use in connection with OE’s educational software (the “Quest Application”);
WHEREAS, Designer wishes to utilize the QuestMaker Platform;
WHEREAS, the Parties intend to enter into a Platform License Agreement pursuant to which as expressly provided herein:
a. OE will make available to Designer the QuestMaker™ Platform;
WHEREAS, in furtherance of the objective set forth above, the parties hereto desire to enter into this Agreement.
NOW, THEREFORE, in consideration of covenants and agreements contained herein, the parties hereto agree as follows:
1. Platform License. Subject to the terms and conditions of this Agreement, OE hereby grants to Designer a limited, non-exclusive license for Designer to use the QuestMaker Platform in accordance with the terms of this Agreement (the “License”).
2. Client Dashboard. In connection with the delivery of the QuestMaker Platform, Designer shall be granted access to a dashboard through which certain user, traffic and other data analysis and statistics shall be available (the “Dashboard”). Designer’s access and use of the Dashboard shall be in accordance with and subject to this Agreement.
3. Support Services. OE will provide support services on the QuestMaker Platform via the Designer support portal available through the QuestMaker Platform and at firstname.lastname@example.org.
4. Ownership of QuestMaker Platform. OE is and at all times shall remain he sole and exclusive owner of all rights and interests to the QuestMaker™ Platform and of any and all intellectual property rights related thereto, including all trademarks, patents, trade names, copyrights, software, licenses, research data, designs, technology, trade secrets, processes, and related intangible property rights, whether or not patentable or copyrightable (“Intellectual Property Rights”), except as otherwise provided under the terms of this Agreement.
5. Ownership and License of Quests. To the extent Designer creates a Quest, Designer is the owner of all copyrights and related intellectual property rights in the Quest and its related content, excluding any of OE’s Intellectual Property Rights in the software that supports or allows access to the Quest (“Designer Intellectual Property”). Designer agrees that any Designer Intellectual Property submitted by Designer shall be its sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. Designer also agrees that it has obtained all necessary rights and licenses. Designer agrees to provide accurate and complete information in connection with its submission of any materials on QuestMaker Platform. Designer hereby grants OE a worldwide, royalty-free, exclusive, irrevocable license to use all Designer Intellectual Property during the Term of this Agreement and continuing after any termination of Designer’s account, without any compensation or obligation to Designer. Designer agrees that all Designer Intellectual Property will be accessible to all end users of the Quest Application (“End Users”). OE RESERVES THE RIGHT TO REVIEW ALL QUESTS AND DESIGNER INTELLECTUAL PROPERTY, TO PUBLISH OR REJECT ANY MATERIALS IN ITS SOLE DISCRETION, AND TO REMOVE OR EDIT ANY DESIGNER INTELLECTUAL PROPERTY, AT ANY TIME IN ITS SOLE DISCRETION WITHOUT NOTICE OR LIABILITY. OE has the right, but not the obligation, to monitor any materials submitted by Designer or otherwise available on the QuestMaker Platform, to investigate any reported or apparent violation of this Agreement, and to take any action that OE in its sole discretion deems appropriate, including, without limitation, termination hereunder.
6. Relationship with OE. Designer understands and agrees that by accepting this Agreement with OE to become a Designer, no legal partnership or agency relationship is created between Designer and OE. Designer agrees not to represent otherwise. Designer also certifies that it is at least thirteen years of age and it represents that it is legally permitted to register as a Designer. This Agreement is void where prohibited by law and the right to register as a Designer is not granted in such jurisdictions. Unless otherwise agreed or permitted by OE in writing, Designer cannot share or transfer any benefits it receives from OE in connection with being a Designer.
7. Restrictions. Designer agrees not to exploit the QuestMaker Platform provided by OE in any unauthorized way, including but not limited to, by trespass, burdening network capacity or using the QuestMaker Platform other than for authorized purposes. Copyright and other intellectual property laws protect the QuestMaker Platform and related content provided to Designer, and Designer agrees to abide by and maintain all notices, license information, and restrictions contained therein. Unless expressly permitted herein or otherwise permitted in a separate agreement with OE, Designer may not modify, publish, network, rent, lease, loan, transmit, sell, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit the QuestMaker Platform. Designer may not decompile, reverse engineer, disassemble, or attempt to derive the source code of any software or security components of the QuestMaker Platform (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing). Use of the QuestMaker Platform to violate, tamper with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited. OE retains ownership of all its rights in the QuestMaker Platform, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any OE intellectual property.
8. OE Independent Development and Feedback. Nothing in this Agreement will impair OE’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market or distribute. In the absence of a separate written agreement to the contrary, OE shall be free to use any information, suggestions, recommendations, or feedback you provide to OE pursuant to this Agreement for any purpose, subject to any applicable patents or copyrights.
9. Confidentiality. The terms of this Agreement and information and data that either Party has received or will receive from the other Party and other matters relating to the respective businesses of the Parties is proprietary and confidential information of the disclosing Party (“Confidential Information”), including without limitation any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the disclosing Party and any reference manuals compiled or provided hereunder. Each Party agrees that for the Term and for two (2) years thereafter, it will not disclose to any third Party nor use for any purpose not permitted under this Agreement any Confidential Information disclosed to it by the other Party. The nondisclosure obligations set forth in this Section shall not apply to information that the receiving Party can document is generally available to the public (other than through breach of this Agreement by the receiving Party) or was already lawfully in the receiving Party’s possession at the time of receipt of the information from the disclosing Party. Each Party agrees that it will not use any Confidential Information of the other Party for any purposes prohibited by United States law.
10. Use of OE Trademarks and Copyrights. You agree to follow OE’s trademark and copyright guidelines as published and as may be modified from time to time. You agree not to use the marks “Opportunity Education,” “Quest Forward Learning™,” or any other marks belonging or licensed to OE in any way except as expressly authorized in writing by OE in each instance or as permitted in OE’s Trademark and Copyright Guidelines. You agree that all goodwill arising out of your authorized use of OE’s marks shall inure to the benefit of and belong to OE.
11. Term and Termination of Platform License. OE may terminate or suspend you as a Designer at any time in OE’s sole discretion. If OE terminates you as a Designer, OE reserves the right to deny your reapplication at any time in OE’s sole discretion. You may terminate your participation as a registered Designer at any time, for any reason, by deleting Your Designer account. Designer’s license of Quest and other Designer Intellectual Property to OE will survive the termination of Designer’s account whether by OE or at will. Upon any termination or, at OE’s discretion, suspension, all rights and licenses granted to you by OE will cease, including your right to access the QuestMaker Platform, and Designer agrees to destroy any and all Confidential Information that is in your possession or control. At OE’s request, Designer agrees to provide certification of such destruction to OE. To the extent OE charges Designer any fee, no refund or partial refund of any fees paid hereunder or any other fees will be made for any reason. Following termination of this Agreement, Sections 4-8, and 10-15 shall continue to bind the parties.
12. No Warranty. OE AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, “OE” FOR PURPOSES OF THIS SECTION 12 AND 13) DO NOT PROMISE THAT THE QUESTMAKER PLATFORM, SITE, CONTENT, SERVICES (INCLUDING, FUNCTIONALITY OR FEATURES OF THE FOREGOING), OR ANY OTHER INFORMATION OR MATERIALS THAT YOU RECEIVE HEREUNDER AS A DESIGNER (COLLECTIVELY, THE “SERVICE” FOR PURPOSES OF THIS SECTION 12 AND 13) WILL BE ACCURATE, RELIABLE, TIMELY, SECURE, ERROR FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND THE SERVICE IS SUBJECT TO CHANGE WITHOUT NOTICE. OE CANNOT ENSURE THAT ANY CONTENT (INCLUDING FILES, INFORMATION OR OTHER DATA) YOU ACCESS OR DOWNLOAD FROM THE SERVICE WILL BE FREE OF VIRUSES, CONTAMINATION OR DESTRUCTIVE FEATURES. FURTHER, OE DOES NOT GUARANTEE ANY RESULTS OR IDENTIFICATION OR CORRECTION OF PROBLEMS AS PART OF THE SERVICE AND OE DISCLAIMS ANY LIABILITY RELATED THERETO. OE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICE. YOU ASSUME TOTAL RESPONSIBILITY AND ALL RISKS FOR YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION OBTAINED THEREON. YOUR SOLE REMEDY AGAINST OE FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. TO THE EXTENT THAT OE MAKES ANY PRE-RELEASE SOFTWARE, HARDWARE OR OTHER PRODUCTS, SERVICES OR INFORMATION RELATED THERETO AVAILABLE TO YOU AS AN OE DESIGNER, YOU UNDERSTAND THAT OE IS UNDER NO OBLIGATION TO PROVIDE UPDATES, ENHANCEMENTS, OR CORRECTIONS, OR TO NOTIFY YOU OF ANY PRODUCT OR SERVICES CHANGES THAT OE MAY MAKE, OR TO PUBLICLY ANNOUNCE OR INTRODUCE THE PRODUCT(S) OR SERVICE AT ANY TIME IN THE FUTURE.
13. Disclaimer of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL OE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM DELAY OF DELIVERY, FOR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF OE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL OE’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
14. Third-Party Materials. Third-party software, including open source software, provided by OE to you as a Designer may be subject to its own licensing terms, in which case such licensing terms shall govern your use of that particular third-party software. Mention of third-parties and third-party products in any materials, documentation, advertising or promotions provided to you as a Designer is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third-party product specifications and descriptions are supplied by the respective vendor or supplier, and OE shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
15. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Nebraska, excluding its conflict of law provisions. The parties further submit to and waive any objections to personal jurisdiction of and venue in any of the following forums: U.S. District Court for the District of Nebraska, or the Fourth Judicial District Court of Nebraska, for any disputes arising out of this Agreement.
16. Amendment. OE reserves the right to modify this Agreement at its discretion at any time. You will be responsible for complying with any such modifications (including but not limited to new terms, updates, revisions, supplements, modifications, and additional rules, policies, or terms and conditions) (“Additional Terms”) communicated to you by OE. All Additional Terms are hereby incorporated into this Agreement by this reference and your continued use of the QuestMaker Platform will indicate your acceptance of any Additional Terms.
17. Communications. OE may send communications to you from time to time. Such communications may be in the form of telephone calls and/or emails and may include, but not be limited to, marketing materials, technical information, and updates and/or changes regarding your role as a Designer. By agreeing to this Agreement, you consent that OE may provide you with such communications.
18. Miscellaneous. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous understanding regarding such subject matter. If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. No addition to or removal or modification of any of the provisions of this Agreement will be binding upon OE unless made in writing and signed by an authorized representative of OE. This Agreement will bind Your successors but may not be assigned, in whole or in part, by You without the written consent of OE and any non-conforming assignment shall be null and void. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of such right.The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Terms and Conditions
THIS LEGAL AGREEMENT (“AGREEMENT”) SET OUT BELOW GOVERN YOUR USE OF THE OPPORTUNITY EDUCATION QUEST FORWARD LEARNING QUEST™ APPLICATION SERVICES. TO AGREE TO THESE TERMS, CLICK “AGREE.” IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE,” AND DO NOT USE THE SERVICES. THIS LEGAL AGREEMENT BETWEEN YOU AND OPPORTUNITY EDUCATION FOUNDATION (“OE”) GOVERNS YOUR USE OF THE QUEST! APPLICATION SERVICE (“SERVICE”).
1. Quest Application Service. OE is the provider of the Service, which permits you to access, purchase or rent digital content (“Quests”) for end user use only pursuant to the terms and conditions set for in this Agreement.
2. Requirements for Use of the Service.
a. Only persons age 13 years or older can create user accounts. User accounts for persons under 13 years old can be created by a parent or legal guardian. Children under the age of majority should review this Agreement with their parent or legal guardian to ensure that the child and parent or legal guardian understand it.
b. Use of the Service may require compatible devices, Internet access, and certain software (fees may apply); may require periodic updates; and may be affected by the performance of these factors. High-speed Internet access is strongly recommended for regular use and is required for video. The latest version of required software is recommended to access the Service and may be required for certain transactions or features. You agree that meeting these requirements, which may change from time to time, is your responsibility. The Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the Service.
3. Your Account.
a. All registered users of the Service must establish an account (“Account”). Do not reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify OE of any security breach of your Account. OE shall not be responsible for any losses arising out of the unauthorized use of your Account.
b. You agree to provide accurate and complete information when you register with, and as you use, the Service (“Registration Data”), and you agree to update your Registration Data to keep it accurate and complete. You agree that OE may store and use the Registration Data you provide for use in maintaining and, if applicable, billing fees to your Account.
4. Service and Your Use of the Service.
a. Subject to the terms and conditions of this Agreement, you are granted a limited, non-transferable, non-exclusive license to install and use the Service on any compatible device that you own or control. You may not distribute or make the Service available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Service.
b. You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License or by the Usage Rules if they are applicable to you), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Service software or any services provided by OE, or any part thereof.
c. You agree to use the Service in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Service.
d. You agree that OE and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information. OE and its partners and licensees may provide certain services through the Service that rely upon location information. To provide and improve these services, where available, OE and its partners and licensees may transmit, collect, maintain, process and use your location data, including the real-time geographic location of your device on which the Service is used, and you hereby agree and consent to OE’s and its partners’ and licensors’ collection, use, transmission, processing and maintenance of such location data to provide such services.
5. Content and Your Use of Content.
b. You agree that the Service, including certain Quests, may include security technology that limits your use of Service, and that, whether or not the Service is limited by security technology, you shall use the Service in compliance with the applicable usage rules established by OE and its licensors (“Usage Rules”), and that any other use of the Services may constitute a copyright infringement. Any security technology is an inseparable part of the Services. OE reserves the right to modify the Usage Rules at any time. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to such Usage Rules for any reason, or to attempt or assist another person to do so. Usage Rules may be controlled and monitored by OE for compliance purposes, and OE reserves the right to enforce the Usage Rules without notice to you. You agree not to access the Service by any means other than through software that is provided by OE for accessing the Service. You shall not access or attempt to access an Account that you are not authorized to access. You agree not to modify the software in any manner or form, or to use modified versions of the software, for any purposes including obtaining unauthorized access to the Service. Violations of system or network security may result in civil or criminal liability.
c. OE reserves the right to change content options (including eligibility for particular features) without notice.
d. Usage Rules:
- You shall be authorized to use the Service, including but not limited to Quests and any other content provided in connection with the Service, only for personal, noncommercial use.
- You shall be able to store Quests and other content provided in connection with the Service from a single Account on a compatible device, provided that each device may sync to the Service with only a single Account at a time.
- You shall not be entitled to reproduce Quests or other content provided in connection with the Service.
e. Certain content, Quests, and services available via the Service may include materials from third parties. OE may provide links to third-party websites as a convenience to you. You agree that OE is not responsible for examining or evaluating the content or accuracy and OE does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that OE is not in any way responsible for any such use by you.
f. You understand that by using the Service, you may encounter material that you may deem to be offensive, indecent, or objectionable, and that such content may or may not be identified as having explicit material. Nevertheless, you agree to use the Service at your sole risk and OE shall have no liability to you for material that may be found to be offensive, indecent, or objectionable.
6. Submissions to OE. The Service may offer interactive features that allow you to submit materials (including links to third-party content) on areas of the Service accessible and viewable by the public. You agree that any use by you of such features, including any materials submitted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You also agree you have obtained all necessary rights and licenses. You agree to provide accurate and complete information in connection with your submission of any materials on the Service. You hereby grant OE a worldwide, royalty free, nonexclusive license to use such materials as part of the Service or in relation to the Quests, without any compensation or obligation to you. OE reserves the right not to post or publish any materials, and to remove or edit any material, at any time in its sole discretion without notice or liability.
8. Intellectual Property.
a. You agree that the Service, including but not limited to Quests, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Service, contains proprietary information and material that is owned by OE and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with this Agreement. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service in any manner, and you shall not exploit the Service in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
b. Notwithstanding any other provision of this Agreement, OE and its licensors reserve the right to change, suspend, remove, or disable access to any Quests or other materials comprising a part of the Service at any time without notice. In no event will OE be liable for making these changes. OE may also impose limits on the use of or access to certain features or portions of the Service, in any case and without notice or liability.
c. All copyrights in and to the Service (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by OE and/or its licensors, who reserve all their rights in law and equity. THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
d. “Opportunity Education,” the OE logo, “Quest Forward Learning,” “Quest Forward,” and other OE trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of Opportunity Education Foundation in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
a. If you fail, or OE suspects that you have failed, to comply with any of the provisions of this Agreement, OE, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or your Account; and/or (ii) preclude access to the Service (or any part thereof).
b. OE reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and OE will not be liable to you or to any third party should it exercise such rights.
10. Disclaimer of Warranties; Liability Limitation. OE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME OE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY OE) PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. IN NO CASE SHALL OE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE ITUNES SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.OE SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND OE HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.OE DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND OE DISCLAIMS ANY LIABILITY RELATING THERETO. SOME PRODUCTS CAN BE DOWNLOADED ONLY ONCE; AFTER BEING DOWNLOADED, THEY CANNOT BE REPLACED IF LOST FOR ANY REASON. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY QUESTS ACQUIRED THROUGH THE SERVICE.
11. Waiver and Indemnity. BY USING THE SERVICE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD OE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SERVICE, OR ANY ACTION TAKEN BY OE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM OE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF OE’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
12. Changes. OE reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof.
a. This Agreement constitutes the entire agreement between you and OE and governs your use of the Service, superseding any prior agreements between you and OE. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. OE’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. OE will not be responsible for failures to fulfill any obligations due to causes beyond its control.
b. The Service is operated by OE from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Service. All transactions on the Service are governed by Nebraska law, without giving effect to its conflict of law provisions. Your use of the Service may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with OE or relating in any way to your use of the Service resides in the courts in the State of Nebraska. Risk of loss and title for all electronically delivered transactions pass to the purchaser in Nebraska upon electronic transmission to the recipient. No OE employee or agent has the authority to vary this Agreement.
c. OE may notify you with respect to the Service by sending an email message to your Account email address, or by a posting on the Service. Notices shall become effective immediately.
d. OE reserves the right to take steps OE believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that OE has the right, without liability to you, to disclose any Registration Data and/or Account information to law enforcement.