Tabula Learning, Inc.
Terms of Service
Dated: June 17, 2019
Thank you for visiting Tabula Learning. These terms (the “Terms”) govern our website, www.tabulalearning.com, and our mobile applications, (collectively the “Properties”) which are owned by Tabula Learning, Inc. (“Tabula Learning”, “we” or “us“). The Terms are intended to make you aware of your legal rights and responsibilities with respect to your use of the services we make available on our Properties (the “Services”).
By accessing or using the Properties, you agree to be bound by these Terms. These Terms constitute the complete agreement between you and us regarding the Properties. From time to time we may be required to change, modify, or otherwise amend these Terms and any other documents incorporated by reference herein (the “Amended Terms“). If we do so, we will provide you with reasonable advance notice, as well as receiving the prior consent from the applicable governing educational body (the “Governing Body”) before implementing the Amended Terms. You agree that we may notify you of the Amended Terms by posting them on the Properties, or communicating the Amended Terms through any method of written contact that we have established with you, and that your use of the Properties after the effective date of the Amended Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Amended Terms. Therefore, you should review these Terms and any Amended Terms before using the Properties. The Amended Terms will be effective as of the date specified in the Amended Terms, and will apply to your use of the Properties from that point forward. These Terms will govern any disputes arising before the effective date of the Amended Terms. Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms.
1. Use of the Properties
You agree to use the Properties only in compliance with these Terms and applicable law, and in a manner that does not violate our legal rights or those of any third party.
You agree that you will only use the Properties for your own use. Use of the Properties is void where prohibited.
Certain portions of the Properties may be secured or otherwise protected from access except for authorized users with valid login and password information. Entities or individuals without authorization attempting to access these portions of the Properties may be subject to prosecution.
2. Account Creation
When you create Your Account, you agree to only provide true, current, accurate, complete and not misleading information. You may not impersonate someone else, create or use an account for anyone other than yourself, provide any personal information than your own, create multiple accounts (except as otherwise authorized by us), or provide or use false information.
Subject to these Terms, we may (a) cancel or suspend your access to Your Account or the Properties generally; and/or (b) cancel, suspend, or remove your access to certain features associated with Your Account; all at our sole and exclusive discretion, with no liability to you or any third party. If we do so, we will notify the Governing Body in accordance with these Terms and any other documents incorporated by reference herein.
3. Intellectual Property Rights
3.1 Intellectual Property Rights
Except for the Student Data, all other the data, software, code, text, graphics, designs, logos, images, audio/visual materials, links, and references (as well as any intellectual property and other rights relating thereto) accessible through the Properties (collectively, the “IP Rights”) are and will remain the property of Tabula Learning and its licensors and suppliers. The IP Rights are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. Except as set forth in these Terms, you may not copy, reproduce, modify, adapt, translate, republish, upload, post, transmit, distribute, sublicense, sell, reverse engineer, decompile, or disassemble any part of the Properties or IP Rights without our prior written permission. The IP Rights and the Properties may be used solely (a) to the extent permitted in these Terms, or (b) as expressly authorized in writing by us or, if so indicated in writing by us, our licensors or suppliers. Use of the Properties or IP Rights for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Properties or IP Rights.
The trademarks, logos, and service marks displayed on the Properties (collectively, the “Trademarks”) are the registered and unregistered trademarks of Tabula Learning, our licensors and partners, and/or others. Nothing contained in these Terms or the Properties should be construed as granting, by implication, estoppel, or otherwise, any license, right to use or any other rights in the Trademarks without the express written permission of Tabula Learning, its licensors or partners, or the third party owner of the Trademarks, except as set forth in these Terms. You agree that the Trademarks are protected by U.S. and international trademark laws, and various other intellectual property and unfair competition laws.
4. Copyright Infringement
If you believe that your copyright has been or is being infringed upon by material found in the Properties, you are required to follow the below procedure to file a notification pursuant to the U.S. Digital Millennium Copyright Act (the “DMCA“). You may be subject to liability under Section 512(f) of the DMCA if you knowingly make any misrepresentations on a take-down notice:
- Identify in writing the copyrighted material that you claim has been infringed upon;
- Identify in writing the material on the Properties that you allege is infringing upon copyrighted material, and provide sufficient information that reasonably identifies the location of the alleged infringing material (for example, the user name of the alleged infringer and the business listing it is posted under);
- Include the following statement: “I have a good faith belief that the use of the content on the Properties as described above is not authorized by the copyright owner, its agent, or law.”;
- Include the following statement: “I swear under penalty of perjury that the information in my notice is accurate and I am the copyright owner or I am authorized to act on the copyright owner’s behalf.”
- Provide your contact information including your address, telephone number, and e-mail address (if available);
- Provide your physical or electronic signature; and
- Send written communication to:
Tabula Learning, Inc.
422 W20th St #4A
New York, NY, 10011
5. Restrictions on Use
Without limiting the generality of these Terms, you specifically agree not to, nor permit a third party to, do the following while using the Properties:
- Use the Properties for illegal or unauthorized uses;
- Impersonate any person or entity;
- ‘Stalk’ or harass other users or persons;
- Disclose any content or information on or received through the Properties to any third party or use any such content or information for any purpose other than seeking capital or assessing a potential investment;
- Harm minors in any way;
- Falsely state or misrepresent your affiliation with another person or entity;
- Provide any false or misleading information;
- Infringe any patent, trademark, trade secret, service mark, copyright, or other intellectual property right of another person;
- Access or use the account of another user without permission;
- Solicit, spam or otherwise advertise to users using the Properties or our content made available through the Properties;
- Distribute unsolicited or unauthorized advertising, surveys, contests, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or other messages for any purposes;
- Distribute computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Interfere with, disrupt, or destroy the functionality or use of any features of the Properties;
- Interfere with, disrupt, or destroy the servers or networks connected to the Properties, or disobey any rules or regulations applicable to such servers or networks;
- ‘Hack’ or access without permission our proprietary or confidential records, those of another user, or those of anyone else;
- Violate any contract or fiduciary relationship (for example, by disclosing proprietary or confidential information of your employer or client in breach of any employment, consulting, or non-disclosure agreement);
- Violate any applicable law, rule, or regulation;
- Decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Properties;
- Remove, circumvent, disable, damage or otherwise interfere with security-related features, or features that enforce limitations on use of, the Properties; and/or
- Modify, copy, publish, license, sell, rent, lease, lend, transfer or otherwise commercialize any rights to the Properties or our content; each as determined in our sole discretion.
6. Term and Termination
The Terms are effective from the date you agree to them by accessing the Properties and continue so long as you use our Properties or until terminated by you, the Governing Body, or us.
You may terminate these Terms by closing Your Account at any time by following the instructions on our Properties in your account profile. We may suspend or terminate these Terms and close Your Account at any time for any or no reason, and will notify the Governing Body within a reasonable time.
6.3 Effect of Termination
Upon termination and closing of Your Account, we will immediately discontinue your access to the Properties, and you agree to immediately cease your use of the Properties. In addition, upon termination, we will either delete or transfer to the Governing Body all of your information and data stored on our servers. We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Properties, or any termination or suspension of the Properties or deletion of your information or data, and that you are still liable to us for any amounts, if applicable, incurred by you or through your use of our Properties prior to termination.
7. Privacy and Security
We make efforts to maintain the security of our Properties and store and process data in accordance with industry best practices. This includes appropriate administrative, physical, and technical safeguards to secure the data from unauthorized access, disclosure, and use. We conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner. In the event of a security breach, we will promptly notify the Governing Body in accordance with our incident response plan, which is available to the Governing Body upon request. Despite our efforts, we do not guarantee the security of the Properties, our records, Student Data, or anything else. We disclaim all liability for any technical problems that we did not intentionally cause.
8. United States of America Only
If you are located outside of the United States, you use or access the Properties solely at your own risk and initiative. The Properties are controlled and operated from facilities within the United States. Tabula Learning makes no representations that the Properties are appropriate or available for use in any other jurisdictions. Accessing the Properties is prohibited from territories where the Properties are prohibited. You acknowledge and agree that it is solely your responsibility to be aware of the applicable laws and regulations of your country of residence.
9. Disclaimer of Warranties and Limitation of Liability
9.1 Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT THE PROPERTIES ARE BEING PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND MAY INCLUDE CERTAIN ERRORS, OMISSIONS, INACCURACIES, OR OUTDATED INFORMATION. YOU ACKNOWLEDGE AND AGREE THAT TABULA LEARNING DOES NOT ENDORSE, WARRANT, OR ASSUME RESPONSIBILITY FOR ANY INFORMATION OR MATERIAL MADE AVAILABLE ON THE PROPERTIES. YOU ACKNOWLEDGE AND AGREE THAT TABULA LEARNING DOES NOT WARRANT AGAINST ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PROPERTIES, ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, ANY FRAUDULENT, DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE PROPERTIES.
TABULA LEARNING MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL MADE AVAILABLE ON THE PROPERTIES. YOU ACKNOWLEDGE AND AGREE THAT THE INFORMATION AND MATERIAL MADE AVAILABLE ON THE PROPERTIES HAVE NOT BEEN INDEPENDENTLY VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY TABULA LEARNING. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROPERTIES AND ANY INFORMATION OR MATERIAL CONTAINED ON THE PROPERTIES, WHETHER PROVIDED BY TABULA LEARNING OR A THIRD PARTY, IS PROVIDED TO YOU ON AN “AS IS” AND “WHERE-IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES OF TITLE ARE HEREBY DISCLAIMED. WE MAKE NO REPRESENTATION THAT THE INFORMATION OR MATERIAL ON THE PROPERTIES CONFORM TO YOUR LOCAL LAWS, AND IF YOU ARE ACCESSING THE PROPERTIES FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ALONE ARE RESPONSIBLE FOR COMPLIANCE WITH YOUR LOCAL LAWS. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
9.2 Limitation of Liability
IN THE CASE OF NEGLIGENCE, NEITHER TABULA LEARNING NOR ANY OF ITS RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, MANAGERS, EMPLOYEES, CONTRACTORS, USERS, PARTNERS, AFFILIATES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, SUPPLIERS, ATTORNEYS, OR AGENTS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY FORM OF DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES) ARISING OUT OF OR RELATED TO THE USE OR ATTEMPTED USE OF THE PROPERTIES, INCLUDING BUT NOT LIMITED TO, TECHNICAL ERRORS, ACCIDENTAL ERRORS, YOUR INABILITY TO ACCESS THE PROPERTIES, THE RESULTS OF YOUR USE OF THE PROPERTIES, OR ANY EXTERNAL WEBSITES LINKED TO THIS PROPERTIES, OR THE INFORMATION OR MATERIAL MADE AVAILABLE ON THE PROPERTIES, HOWEVER ARISING, WHETHER FOR BREACH OR IN TORT, EVEN IF TABULA LEARNING WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE CASE OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, STRICT LIABILITY, OR ANY OTHER THEORY OF LAW OR EQUITY, NEITHER TABULA LEARNING NOR ANY OF ITS RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, MANAGERS, EMPLOYEES, CONTRACTORS, USERS, PARTNERS, AFFILIATES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, SUPPLIERS, ATTORNEYS, OR AGENTS SHALL BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES (INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES) BEYOND ONE HUNDRED US DOLLARS AND NO CENTS ($100.00). REMEDIES UNDER THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE PROVIDED HEREIN.
IF YOU HAVE A DISPUTE WITH ONE OR MORE THIRD PARTY, YOU FOREVER RELEASE TABULA LEARNING, AND ITS LICENSORS, SUPPLIERS, AGENTS, SUCCESSORS, AND ASSIGNS, AND THEIR RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, MANAGERS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND AGENTS, FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE PROPERTIES, IP RIGHTS, AND CONTENT, OR YOUR PARTICIPATION IN OR USE OF ANY PROVIDED ON OR THROUGH THE PROPERTIES.
10.2 California Residents
If you are a California resident, you waive California Civil Code Section 1542, which states the following: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” If you are not a California resident, you waive your rights under any statute similar to California Civil Code Section 1542 that governs your rights in the jurisdiction of your residence.
Furthermore, pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Tabula Learning must be sent via certified mail to:
Tabula Learning, Inc.
422 W20th St #4A
New York, NY, 10011
California residents may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Boulevard, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
10.3 Data Fees
Data Fees Data, messaging, or other ISP and carrier fees may apply in your use of the Properties through a mobile device.
The section and subject headings in these Terms are included for reference only and shall not be used to interpret any provisions of these Terms. These Terms shall not be construed against us on the grounds that we conducted or arranged for the drafting of the Terms. Nothing contained in these Terms will be deemed to constitute Tabula Learning or you as the agent or representative of the other or as joint venturers or partners
10.5 Governing Law/Dispute Resolution
These Terms will be governed by and construed in accordance with the laws of the State of New York, excluding that body of law relating to conflict of laws. In the event of any claim, controversy or alleged dispute between you and Tabula Learning, its directors, shareholders, officers, managers, employees, successors, assigns, subsidiaries, affiliates, suppliers, or agents, (the “Dispute”), you hereby agree to attempt in good faith to amicably resolve any Dispute at least 30 days before instituting any legal proceeding. In the event no resolution to the Dispute can be reached through such process, the Dispute shall thereafter be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (the “Commercial Rules”). The award rendered by the arbitrator shall be final, non-reviewable, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction. Judgment on the award shall be final and non-appealable. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules. The seat or place of arbitration shall be New York City, New York. The arbitration shall be conducted and the award shall be rendered in English. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any Dispute or arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The arbitrator will have no authority to award punitive damages, consequential damages, liquidated damages, or compensatory damages exceeding one hundred US dollars and zero cents ($100.00). The foregoing notwithstanding, nothing in this paragraph shall affect our ability to seek a court injunctive or equitable relief at any time. Neither Tabula Learning nor you are entitled to arbitrate any dispute or claim as a class, representative or private-attorney action and the arbitrator shall have no authority to proceed on a class, representative or private attorney basis. Furthermore, to the full extent permitted by law, no arbitration shall be joined with another nor shall it be brought in a purported representative capacity on behalf of the general public or any other persons. Where permitted by law, you hereby waive your rights to a jury trial.
10.6 Entire Agreement
10.7 Third-Party Beneficiaries
These Terms does not confer any third-party beneficiary rights.
10.8 Force Majeure
Tabula Learning shall not be liable to you for any delay or failure in performance under these Terms, arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.
10.9 No Assignment
Neither these Terms nor any right, obligation, or remedy hereunder is assignable, transferable, delegable or sub-licensable by you except with our prior written consent, and any attempted assignment, transfer, delegation, or sublicense will be null and void. Tabula Learning may assign, transfer, or delegate these Terms or any right, obligation or remedy hereunder in its sole discretion.
If any provision of these Terms is deemed unlawful, invalid, or unenforceable by a judicial court for any reason, then that provision shall be deemed severed from these Terms, and the remainder of the Terms shall continue in full force and effect.
Our failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any term or condition of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. Nothing in these Terms waives or limits extra-contractual rights or remedies available to us to protect our rights or property, including, but not limited to, those available under U.S. copyright law, international treaties or copyright or intellectual property laws of the countries in which the Properties is used.
You agree that Tabula Learning may provide you with notices, including those regarding changes to this Agreement, by email, regular or expedited mail, text communication, website postings or other means of communication