RoundEd Learning Terms of Use
Effective Date: March 24, 2020
These Terms of Use (“Terms”) apply to the products and services of RoundEd Learning Inc. (“RoundEd Learning”, “we”, “our” or “us”), a California corporation, including the website located at www.roundedlearning.com (the “Site”) and our web and mobile applications (collectively, including the Site, the “Products”).
By opening a RoundEd Learning account or downloading or using a Product, you agree to comply with these Terms and our Privacy Policy. Also, you agree to ensure that any Child User (as defined below) associated with your Account (as defined below) comply with these Terms. When accepting these Terms on behalf of a Child User, the terms “you” and “your” shall be deemed to refer to both you and the Child User(s). If you are accepting these Terms on behalf of an entity or institution, you represent and warrant that you have the authority to enter into these Terms on behalf of such entity or institution. In such case, as used herein, “you” and “your” shall be deemed to refer to such entity or institution and all references to Child User shall refer to a child or children authorized by such entity or institution to access the Products. We may, at our sole discretion, modify any of these Terms at any time, and your continued use of the Products will be deemed acceptance of such modifications.
Certain of the Products may also be governed by separate terms of service or sale documents that you agree to in order to purchase, download or access such Products (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
1) Account, Password, and Payments
a) Account. Users of the Products include “Child Users” (children under the age of 18 who use or access the Products) and “Adult Users” (parents, legal guardians, and teachers of Child Users) each of whom may have an account (each, an “Account”). Adult Users are responsible for setting up their Child User’s account and access to the Products.
b) Passwords and Account Access. Every Account has one designated Adult User who must be at least 18 years of age. You are responsible for maintaining the confidentiality of your password and Account information and the password and Account information of your Child Users. You agree that: (i) you will provide complete and accurate registration information about yourself and any individual you authorize to access your Account and keep your Account information up-to-date; (ii) you are solely responsible for all activities that occur under your Account; (iii) you will notify us immediately of any unauthorized Account use; (iv) we are in no way responsible for any loss that you may incur as a result of any unauthorized use of your Account and password; and (v) you will not sell, transfer, or assign your Account or any Account rights. If we learn that an ineligible User has created an Account, we may seek confirmation of the User’s status or deactivate the Account, without notice to the ineligible User.
c) Account Fees. We may charge a fee, such as a course fee, for use of the Products. Unless otherwise specified, Products are paid for at the time of download and remain active for a period of one year. The game-based course can be played through by each registered user only once, although the instructional content and some of the repeatable activities in the course will be available for review or repeated play for the entire year. For existing users, we may change the course fee at any time in our sole discretion, if you wish to extend access to the content past the one year. All fees are payable in accordance with payment terms in effect at the time the fee becomes payable. We may offer promotional trial subscriptions to access the Products for free or at special discounted prices. If you sign up for a trial use, your rights to use the Products are limited by the terms of such trial and will terminate or renew according to the terms of your trial arrangement and/or any applicable Additional Terms. Failure to pay any fees may result in your inability to access or use the Products.
d) Authorization to Charge for Products. You must either use a credit card or other payment mechanism accepted by us (each a “Payment Method”) to activate and maintain a paid Account. You authorize us to charge you through the Payment Method that you use when registering for an Account. You will also be responsible for charges (including applicable taxes) for any products or services that you order that are offered for sale through the Products. If we do not receive payment from the Payment Method you use, you agree to pay all amounts due hereunder upon our demand and will be solely responsible for any dispute with your payment provider. Should the Payment Method provided initially be declined for insufficient funds or any other reason, we reserve the right to attempt to recharge the Payment Method in full or in lesser installments of the initially incurred charge for the duration of the Account subscription you selected and for up to an additional 90 days. You will not be charged more than the amount for which you purchased your Product. You will be solely responsible for all overdraft fees and/or penalties that may be assessed by your payment provider. We use a third-party service provider to process payments on our behalf. You acknowledge and agree that in the event the third-party payment processor experiences a data breach that affects your information through no fault of RoundEd Learning, we will in no way be responsible or liable to you for any such breach.
2) Products Ownership and License
a) Ownership. As between us and you, the Products (including past, present, and future versions) are owned and controlled by us, and the Content included in the Products is protected by copyright, trademark, trade dress, patent, and other intellectual property rights and laws to the fullest extent possible. “Content” means all text, graphics, user interfaces, visual interfaces, photographs, logos, sounds, music, artwork, and computer code displayed on or available through the Products and the design, structure, selection, coordination, expression, and arrangement of such materials including, without limitation, (i) materials and other items relating to us and our products and services, including, without limitation, all activities, printables, characters, photographs, audio clips, sounds, pictures, videos, and animation, (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including ours (collectively, “Trademarks”), and (iii) other forms of intellectual property.
b) Limited License. Subject to your compliance with these Terms and any applicable Additional Terms, and your payment of any applicable fees, we grant you a limited, nonexclusive, revocable, nonassignable, and nontransferable license (the “License”) to access, display, view, and use the Products on a personal computer, mobile phone or other wireless device, or other internet-enabled device (each, an “Internet Device”) for your personal, noncommercial use only. The License does not give you any ownership of, or any other intellectual property interest in, the Products, and you cannot otherwise use the Products without our express prior written permission. All rights not expressly granted to you are reserved by us and/or our licensors and other third parties. Except as expressly provided in these Terms or any applicable Additional Terms, or with our express prior written consent, no part of the Products and no Content may be used, copied, reproduced, distributed, uploaded, posted, publicly displayed, translated, transmitted, broadcast, sold, licensed, or otherwise exploited for any purpose whatsoever. Any unauthorized use of the Products or any Content for any purpose is prohibited.
3) Product and Content Use Restrictions
You agree that you will not: (i) reverse engineer, disassemble, or modify any source or object code or any software or other products, services, or processes accessible through the Products, install any software, file, or code on the Products that is not authorized by us, or attempt to do so; (ii) engage in any activity that interferes with a User’s access to the Products or the proper operation of the Products; (iii) access or collect information from the Products using automated means (such as through scripts, robots, scrapers, or spiders); (iv) use any meta tags or other “hidden text” utilizing any of our Trademarks; (v) interfere with or circumvent any security feature of the Products or any feature that restricts or enforces limitations on the use of or access to the Products or Content; (vi) use the Products for commercial or political purposes; (vii) operate the Products as a service bureau; (viii) disclose, harvest, or otherwise collect information, including email addresses or other private information about any third party, including Child Users, without that party’s (or for Child Users, their parent’s, legal guardian’s or teacher’s, as applicable) express consent; or (ix) otherwise violate these Terms or any Additional Terms, or solicit, encourage, or facilitate anyone else to do so.
4) Linking to and from Our Products
a) Linking to or Framing Our Products. When linking to our Products, you must adhere to the following requirements: (i) the link to the Products must not damage, disparage, present false information about or tarnish the goodwill associated with any of our Trademarks, products, services, and/or intellectual property; (ii) the link to the Products must not create the false appearance that your website and/or organization is sponsored by, endorsed by, affiliated with, or associated with us; (iii) no one may “frame” the Products or create a browser environment around any of the Content; and (iv) you may not link to the Products from a website: that is unlawful, abusive, indecent, or obscene; that promotes violence or illegal acts; that contains expressions of racism; that is libelous, defamatory, scandalous, or inflammatory; or that we otherwise deem inappropriate in our sole discretion. We reserve the right to prohibit linking to the Products for any reason, in our sole discretion, even if the linking complies with the requirements described above.
b) Links to Other Products and Third Parties. Any interactions, transactions, and other dealings that you have with any third parties found on or through the Products (including those that are linked to from the Products) are solely between you and the third party (including issues related to payments, delivery of goods, and warranties), and we disclaim all liability in connection therewith.
5) Governing Law/Dispute Resolution
a) Governing Law/Jurisdiction. These terms, and any Additional Terms, will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles.
b) Arbitration and Dispute Resolution. If any controversy, allegation, or claim arises out of or relates to the Products, these Terms, or any Additional Terms (each, a
“Dispute”), you and we agree to the following resolution process with respect to the Dispute. To most efficiently resolve any Dispute, you and we agree to first discuss the Dispute informally for at least 30 days. To do so, the party who wants to raise the Dispute must first send to the other party a notice that must include: (1) a description of the Dispute; and (2) a proposed resolution (together, the “Dispute Notice”). If you want to raise a Dispute with RoundEd Learning, you must send your Dispute Notice at our contact information provided below. If we would like to subsequently discuss your Dispute Notice with you, we will contact you using the contact information included with your Dispute Notice. If we want to raise a Dispute, we will send our Dispute Notice to you at the email address that we have on file for you. If we do not have a valid email address on file for you, we will send our Dispute Notice to you through a means that complies with the service of process rules in the State of California.
c) AAA. If we do not reach an agreed-upon resolution within 30 days of receipt of the Dispute Notice, you and we agree that the Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (AAA). The arbitration will be heard and determined by a single neutral arbitrator who is a lawyer or retired judge, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. In resolving the Dispute, the arbitrator will consider applicable law, the provisions of these Terms and any Additional Terms, and any facts based upon the record and no other basis and will issue a reasoned decision. You can obtain AAA procedures, rules, and fee information as follows:
1-800-778-7879
http://www.adr.org
d) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator will resolve the submitted Dispute and can issue a decision consistent with this Section 5. However, WITH ARBITRATION, THERE IS NO JUDGE OR JURY; THE ARBITRATION PROCEEDINGS AND ARBITRATION ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules, but if applicable arbitration rules or laws require us to pay a greater portion or all of such fees and costs in order for this Section 5 to be enforceable, then we will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) are based. Judgment on the arbitration decision and award (if any) may be entered in any court that has jurisdiction over the parties.
e) Small Claims Matters Are Excluded. Either of us may bring a qualifying claim of Disputes in small claims court.
f) Injunctive Relief. The foregoing provisions of this Section 5 will not apply to any legal action taken by either party to seek an injunction or other equitable relief in conjunction with any intellectual property claim or claim related to unauthorized access to data through the Products (including, but not limited to, claims related to patent, copyright, trademark, and trade secrets, and claims relating to the access or retrieval of data through the Products using an automated process such as scraping).
g) Timing of Claim. To help resolve any issues between you and us promptly and directly, you and we agree that any Dispute Notice must be sent, or that any small claims or injunctive relief complaint permitted under this Section 5 must be filed, within one year after the events giving rise to the Dispute arose; otherwise, the Dispute is waived.
h) No Class Actions. You and we agree that any Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.
6) Disclaimer of Representations and Warranties
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.
Therefore, to the fullest extent permitted by law, we and our affiliates, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Company Parties”), hereby to the maximum extent permitted by applicable law, disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to the following:
the functions, features, or any other elements on, or made accessible through, the Products;
any products, services, or instructions offered or referenced at or linked through the Products;
whether the Products (and their Content), or the servers that make the Products available, are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Internet Device);
the specific availability of the Products, and whether any defects in the Products will be repaired or will be repaired in a particular time frame; and
whether your use of the Products is lawful in any particular jurisdiction.
EXCEPTING ONLY AS MAY BE SPECIFICALLY SET FORTH IN ANY ADDITIONAL TERMS, THE COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM ERRORS, COMPUTER VIRUSES, OR OTHER HARMFUL ELEMENTS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties, so the above disclaimers may not apply to the extent that such jurisdictions’ laws are applicable.
7) Limitations of Liability
UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
the Products or the Content;
your use of or inability to use the Products or the performance of the Products;
the failure of a Child User to learn or otherwise benefit educationally from his or her use of the Products;
any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Products;
any action taken in connection with copyright or other intellectual property owners or other rights owners;
any errors or omissions in the Products’ technical operation; or
any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, inaccuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, force majeure, telecommunications failure, or destruction of the Products).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PRODUCTS AND YOUR RIGHTS UNDER THESE TERMS EXCEED THE AMOUNT PAID BY YOU TO US DURING THE PREVIOUS 12 MONTHS FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION.
8) Indemnity
To the maximum extent allowed by law, you agree to indemnify, defend, and hold harmless the Company Parties from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from: (a) your breach or alleged breach of these Terms; (b) your use of the Products or activities in connection with the Products; (c) your violation of any law, rule, or regulation; or (d) your violation of any third-party rights. The Company Parties reserve the right to assume, at their sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with the Company Parties in asserting any available defenses. You will not, in any event, settle any claim without our prior written consent. If any Child User you authorize to use or access the Products disaffirms any or all of these Terms, you agree to defend, indemnify, and hold Company Parties harmless for any damages that Company Parties suffer by the Child User’s disaffirmance.
9) Infringement Policy and Reporting Procedure.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), our designated agent to receive notices of copyright infringement may be reached by email at info@roundedlearning.com or by postal mail 218 Del Valle Court, Pleasanton CA 93466.
If you believe that your material has been posted on, or distributed via, the Products in a way that constitutes copyright infringement, please provide the following information to our designated agent as required by the DMCA: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “complaining party”); (ii) identification of the copyrighted work(s) claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party; (v) a statement that the complaining party (name, address, telephone number, and email address) has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The DMCA provides that a person who knowingly materially misrepresents that material or an activity is infringing may be subject to liability. We may send the information in the notice from the complaining party to the person who provided the allegedly infringing material.
10) Wireless Access
The Products are available to you via your wireless Internet Device. Your carrier may charge standard messaging, data, and other fees, which may appear on your wireless bill or be deducted from your prepaid balance. Your carrier may prohibit or restrict certain Wireless Features, and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties. If you have registered via the Products for Wireless Features, then you agree to notify us of any changes to your wireless number (including phone number) and update your Account to reflect the changes.
11) Submission of Feedback
Under certain circumstances, we might ask Adult Users for feedback or ideas as to their experiences with our Products. If you choose to provide us with feedback, you acknowledge and agree (i) that you have no expectation of review, compensation, or consideration of any type for any such feedback or ideas; and (ii) we will be free to use and exploit such feedback or ideas in our discretion and without compensation or obligation to you.
12) General Provisions
a) Termination and Suspension. We reserve the right to discontinue the Products or suspend or terminate your access to them, including any Accounts, at any time, without notice, for any reason and without any obligation to you or any third party. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, or otherwise violates these Terms or any Additional Terms, then we may suspend or terminate your Account or deny you access to all or part of the Products. Any suspension or termination will not affect your obligations to us, including any payment obligations to us, and you will not be entitled to a refund of any payments. Upon suspension or termination of your access to the Products, or upon notice from us, your License to use the Products will terminate immediately.
b) Communications. When you communicate with us electronically, such as via a Product communication tool, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically, satisfy any legal requirement that such communications be in writing.
c) Operation of Products; International Issues. The Products are controlled and operated by us from the State of California, United States, and we provide the Products for use only by persons located in the United States. Access to the Products may not be legal by certain persons or in certain countries. If you access the Products from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
d) Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed unenforceable by a court or arbitrator, you agree that every attempt will be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in such terms will continue in full force and effect. You agree that these Terms, and Additional Terms, will not be construed against us because we drafted them.
e) Assignment. We may assign our rights and obligations under these Terms, or any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms, and any Additional Terms, may not be assigned by you, and you may not delegate your duties under them.
f) No Waiver. No waiver by us of any of these Terms or any Additional Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of RoundEd Learning.
g) Update to Terms. We reserve the right to modify these Terms, or any Additional Terms, from time to time in our sole discretion (the “Updated Terms”). You agree that any Updated Terms will be effective immediately upon our posting them on the Products and, if you have an Account, either by displaying an alert next to the link to the Terms, displaying an alert upon log in to the Products, or by directly communicating them to you (e.g., via the email address associated with your Account), provided that (i) any modification to Section 5 related to dispute resolution shall not apply to any Dispute initiated prior to the applicable modification, and (ii) any modification to provisions related to fees and billing shall not apply to fees incurred prior to the applicable modification. If you do not cancel your Account within seven days after receiving notice of Updated Terms as described above, or if you continue to use the Products after receiving notice of Updated Terms, you agree to comply with, and to be bound by, the Updated Terms.
h) Contact Us. RoundEd Learning Inc. is located in the United States and is the operator of the Products. If you have questions regarding the Terms and issues related to the Products or your Account, you can contact us via mail at the address set forth below:
RoundEd Learning Inc.
Pleasanton, CA 94566
Attn: Vidya Raman, CEO