Last updated date: March 9, 2021
These Website and Service Terms and Conditions (“Terms of Service”) are entered into by and between you and Mucktracker, Inc. (“Mucktracker” or the “Company”). These Terms of Service govern your access to and use of www.mucktracker.com, app.mucktracker.com, www.mucktracker.net, www.Mucktracker.org, and www.mucktracker.info (collectively, the “Website”) and any content, functionality, online and/or mobile services, websites, and software provided on or in connection with the Website (collectively with the Website, the "Services"), whether as a guest or registered user, including mobile applications associated with the Website and any other Company website, app or online service which links to these Terms of Service.
Please read these Terms of Service carefully. By accessing or using the Services, you signify that you have read, understood and agree to be bound by these Terms of Service, and to the collection and use of your information as set forth in our Privacy Policy whether or not you are a registered user of our Services. These Terms of Service apply to all visitors, users, and others who access or otherwise use the Service ("you" or "Users"). If you open a Mucktracker account on behalf of a School, company, organization, or other entity, then "you" includes you and that entity.
SCHOOLS UTILIZING THE SERVICE ARE RESPONSIBLE FOR MONITORING THE RIGHTS AND INTERESTS OF THEIR STUDENTS AND MUST THEREFORE TAKE SPECIAL CARE IN THE REVIEW OF THIS AGREEMENT. SCHOOLS SHALL BE RESPONSIBLE FOR OBTAINING, WHERE APPLICABLE, PERTINENT CONSENT FROM PARENTS, LEGAL GUARDIANS OR ELIGIBLE STUDENTS PRIOR TO UTILIZING THE SERVICE. MUCKTRACKER SHALL NOT BE RESPONSIBLE FOR ANY NEGLIGENCE OF THE SCHOOL IN THE REVIEW OF THIS AGREEMENT OR THE OBTAINMENT, WHERE APPLICABLE, OF THE NECESSARY PARENTAL CONSENT.
Changes to Terms of Service: We may revise and update these Terms of Service from time to time in our sole discretion, which will be reflected in the “date last modified” at the end of these Terms of Service. If we change these Terms of Service in a material manner, we will update the “Effective Date” at the top of this page. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. If you do not agree to any of the terms in these Terms of Service or to any future terms, do not use or access (or continue to access) the Service.
Notwithstanding the foregoing, the Company shall not make any material change to the Terms of Service that relate to the collection or use of Student Data without first giving notice to the school or parent and providing a choice before the Student Data is used in a materially different manner than was disclosed when the information was collected.
In the event that you have entered into a signed, written agreement with the Company, in addition to these Terms of Service, any changes to these Terms of Service will not be effective as to you until either (a) you affirmatively accept the changes to these Terms of Service, either electronically or in a signed writing or (b) upon renewal at the end of the current term of your account. You will not be permitted to continue using the Services and the Company reserves the right to cancel your account without notice if you refuse or otherwise fail to accept changes made to these Terms of Service.
Student Data: The Services may be purchased by providers of educational services, such as schools, school districts, or teachers (collectively referred to as "Schools") that use our services for educational purposes. When the Company contracts with a School to provide the Services, we may collect or have access to Student Data (defined below), which may be provided by the School or by the student. We consider such Student Data to be strictly confidential and in general do not use such data for any purpose other than improving and providing our Services to the School or on the School's behalf, or as otherwise agreed with the School pursuant to a separate written agreement. Our collection, use and sharing of Student Data is governed by these Terms of Use, our Privacy Policy, any such separate written agreement, and any applicable laws and regulations including, in the U.S., provisions of the Family Educational Rights and Privacy Act ("FERPA"), the Children's Online Privacy Protection Act ("COPPA"), and other applicable federal and state laws. Without limiting the foregoing, if you are a School, you agree to adopt FERPA notices that permit disclosure of Student Data to Company as a “school official.” You agree to provide a copy of any applicable FERPA notice to us upon request.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. ACCESSING THE WEBSITE AND OTHER SERVICES
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users. Unless explicitly stated otherwise, any new or improved features to the Services shall be provided subject to these Terms of Service.
To access the Services, you may be asked to provide certain registration details or other information. As a condition to your use of the Services you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that all such information is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms of Service.
The Company does not sell the Services to children, but only to adults who can purchase the Services with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Services only with the involvement and consent of a parent, legal guardian, or at the direction of your School. Your School may impose additional policies regarding the use of the Services, with which you must comply.
If you open an account to provide the Services to students in a School, you represent and warrant that you are an authorized representative of the School with the authority to bind the School to these Terms of Service, and that you agree to these Terms of Service on the School's behalf. You also agree you have the authority to provide consent on behalf of parents for the Company to collect information from students under 18 before allowing such students to access our Services.
2. ACCOUNT PASSWORD AND SECURITY
You will have a password and account designation upon completing the Services registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. Without limiting the foregoing, you acknowledge and agree (a) that your account is personal to you and agree not to provide any other person with access to the Website or portions of it using your user name, password, or other security information); (b) to immediately notify the Company of any unauthorized use of your password or account or any other breach of security, and (c) ensure that you exit from your account at the end of each session. We are not responsible for any unauthorized access to your account, and any ramifications of such access. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Mucktracker accounts may not be shared by more than one person or organization unless express authorization is given by the Company.
Your account belongs to you, regardless of the email address you used when signing up for the Services. However, please keep in mind that if your educational institution, organization or company disables your email address and you’re not able to log in, we won't be able to recover your account. Additionally, if you utilize the Services through a license acquired by another party for you to use (e.g., bought by your school for teaching purposes), the party paying for such feature has the right to control access to and get reports on your use of such paid feature; however, they do not have rights to your personal account.
Additional Terms: Student Users. If you are a student accessing the Service at the invitation of a teacher or other school official, the following terms apply to you:
3. USER CONTENT
The Services may now or in the future allow Users to submit, post, display, provide, or otherwise make available content such as text, images, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Website is referred to as "User Content").
You are solely responsible for any User Content that you create, transmit or display while using the Services and you, not the Company, have full responsibility for such User Content, including its legality, reliability, accuracy, and appropriateness.
We claim no ownership rights over User Content created by you. The User Content you create remains yours.
You are under no obligation to submit anything to us. However, in order for us to provide the Website and certain services that you may request, we need your permission to process, display, reproduce and otherwise use User Content you make available to us. By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Services, you expressly grant to the Company and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns a perpetual, irrevocable, transferable, sub-licensable, non-exclusive, worldwide, royalty-free license and right to use, reproduce, modify, publish, perform, display, distribute, edit, translate, syndicate, make derivative works of and otherwise disclose to third parties any such User Content for use in connection with the Services and the Company’s (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Services a non-exclusive license to access your User Content through the Services, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Services and under these Terms of Service. Notwithstanding the foregoing grant, as further identified in the Privacy Policy, content that you upload or make available to the Website or other Services for the purpose of processing through or with the Services that you may request (such as personal information, addresses, financial information, and similar related data) will only be used by us for the purpose of providing the Services to you in accordance with our Privacy Policy.
You must have the legal right to the User Content you submit to the Service. You may not upload or post any User Content to the Services that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload User Content that violates any third party's right of privacy or right of publicity. You may post only User Content that you have permission to post by the by the owner or by law.
You represent and warrant that:
We are not responsible or liable to any third party for the content or accuracy of any User Content posted or submitted by you or any other user of the Services.
You understand that by sharing information on the Website, and requesting information to be sent through the Website, you may be revealing information about yourself that you may include. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that we shall not be held responsible, and we shall be released and held harmless by you from any liability or damages arising out of such conduct.
4. PROHIBITED USES
You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Website or other Services:
Additionally, you agree not to:
Monitoring and Enforcement; Termination. We have the right to:
However, we do not undertake to review material before it is posted on the Website and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
5. COPYRIGHT COMPLAINTS
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA").
If you believe in good faith that any User Content has been copied in a way that constitutes copyright infringement and is accessible via the Services, please contact us at [email protected].
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
It is our policy to terminate the user accounts of repeat infringers.
International Use: Recognizing the global nature of the Internet, you agree to comply with and are solely responsible for ensuring compliance with all local laws, regulations, and rules in the jurisdiction(s) in which you reside. You agree to comply with all applicable laws regarding the transmission of data exported from the United States or the jurisdiction(s) in which you reside.
6. COMPANY PROPRIETARY RIGHTS
You acknowledge and agree that the Services and the entire content, features, and functionality of the Services (including but not limited to the Website and all information, text, displays, images, video, and audio, and the design, selection, arrangement of the Website or other Services, and any necessary software used in connection with the Services ("Software")), are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Services for your personal, non-commercial use only. Under these Terms of Service, it is expressly forbidden to distribute or reproduce the content of the Services or any portion thereof by any means, including but not limited to electronic and print, except as follows:
You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for obtaining unauthorized access to the Services.
The Company reserves the right to cancel your account without refund if it is determined that you have violated this section of the Terms of Service.
All rights not expressly granted are reserved by the Company. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
Trademarks: The Company name, the terms Mucktracker, the Company logo, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website or in any of the content included in the Services are the respective trademarks of their respective owners.
7. RELIANCE ON INFORMATION POSTED
The information presented on or through the Website is made available solely for general information or education purposes and are not intended and DO NOT constitute financial, investment, tax, or other professional advice. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents. You agree that we are not responsible for any financial, business, investment, tax, or legal decision that you may make.
This Website may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
8. INFORMATION ABOUT YOU AND YOUR VISIT TO THE WEBSITE
All information we collect on the Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
9. LINKS FROM THE WEBSITE
Mucktracker is designed as a tool to help students analyze, evaluate, and compare news sources. To provide a realistic and interactive learning experience, our Website may contain links to news media and other sites that are not owned or controlled by the Company and include features that allow you to interact and communicate with third parties. These links are provided for your convenience only. This also includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
We have no control over, do not endorse, and assume no responsibility for the content accuracy, privacy policies, or practices of or opinions expressed in any third-party websites, or the use of such websites. We do not make any representation regarding the quality, safety, suitability, or reliability of any external website or any of the content or materials contained on them. Your interactions with organizations and/or individuals found on or through the Services are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any other person.
We urge users to take adequate steps to safeguard against such things like viruses, worms and other potentially harmful malware.
When using the third-party links on our website, please remember you should review the privacy policies of those websites and the terms and conditions to get a better understanding of what, why and how they collect and use any personally identifiable information.
IF YOU ARE A SCHOOL PURCHASING THE SERVICES, YOU ARE RESPONSIBLE FOR DETERMINING WHETHER TO ALLOW OR BLOCK ACCESS TO ANY LINK PROVIDED ON OUR WEBSITE. WE ARE NOT RESPONSIBLE FOR ANY LINKS THAT DO NOT FUNCTION DUE TO BLOCKS OR FILTERS PLACED ON STUDENT INTERNET ACCESS.
10. GEOGRAPHIC RESTRICTIONS
The Company is based in the United States. We currently provide the Services for use only by persons located in the United States. We make no claims that the Services or any of the content available on the Website is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. We may restrict access to the Website or other Services from certain countries due to economic sanctions, privacy laws, intellectual property concerns, or other reasons, in our sole discretion.
11. NO RESALE OF SERVICES
You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
12. CHANGES TO SERVICES
We reserve the right to at any time and from time to time to modify or temporarily discontinue the Services (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Services. In the event of permanent discontinuance of the Services, the Company’s liability is limited to the paid subscription price, pro-rated to the amount of time remaining on the subscription.
We may update the content of the Website from time to time, but the content is not necessarily complete or up-to-date. We are under no obligation to update such content.
We may provide notifications, whether required or provided by law or otherwise, to you via e-mail notice, written or hard copy notice, or through posting of such notice on our Website, as determined by the Company in our sole discretion.
13. SCHOOL ACCOUNTS AND STUDENT DATA
This Section 13 applies to a School's use of the Service.
When our Services are used by a School for an educational purpose, we may collect or have access to Student Data that is provided by the School or by a student. "Student Data" is personally identifiable information that is directly related to an identifiable student and may include "educational records" as defined by the Family Educational Rights and Privacy Act ("FERPA”), as well as information that is not an educational record, such as student name and grade level (typically considered as “directory information” under FERPA).
The School or the student, and not Mucktracker, owns and controls the Student Data. You authorize us to access, collect, transmit, modify, display and store Student Data to provide the Service and as described in this Agreement and in our Privacy Policy.
Compliance with Laws. A School may not generally disclose personally identifiable information from an eligible student’s education records to a third party without written consent of the parent and/or eligible student or without meeting one of the exemptions set forth in FERPA (“FERPA Exemption(s)”), including the exemption for Directory Information (“Directory Information Exemption”) or disclosure to school officials with a legitimate educational interest (“School Official Exemption”). As the School providing Directory Information or any Education Record to Us, you acknowledge, affirm and pledge to Us, as applicable, that your School has:
Use of De-Identified or Anonymized Student Data. You agree that both before and after the term of the Agreement, we may collect, analyze, use, and retain data derived from Student Data as well as data about users' access and use of the Service, for the purpose of operating, analyzing, improving or marketing the Service, developing new products or services, conducting research or other purposes, provided that we may not share or publicly disclose information that is derived from Student Data unless such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
Use of Personal Information for Marketing. You agree that we may provide customized content, advertising, and commercial messaging to school, teacher or district administrative users and other non-student users from time to time, provided that such advertisements shall not be based on Student Data. For emphasis, and without limitation, we shall never use Student Data to engage in targeted advertising.
Disclosure of Student Data and Third-Party Service Providers. You acknowledge and agree that we may provide access to Student Data to our employees and service providers which have a legitimate need to access such information to provide their services to us. We will not share Student Data with third parties other than as described in this Agreement and in our Privacy Policy, or with consent of the School or parent.
14. THIRD-PARTY INTEGRATIONS
Our Services allow for integrations with a learning management system (“LMS”) or other third-party apps or tools to provide certain features and improve your experience when using the Services. As a result, we are obligated to make you aware of certain terms related to the use of such features. Any use of any LMS or other third-party app or tool shall be ruled by their respective terms of service. YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS APPLICABLE TO SUCH THIRD-PARTY SERVICES WHEN USING THEIR RESPECTIVE INTEGRATIONS WITH THE SERVICE.
The Company is not responsible for the actions, content, information or data of other third parties, including other users or third-party websites. You are solely responsible for your interactions with other users of the Services, and any other parties with whom you interact through the Services. We reserve the right, but have no obligation, to become involved in any way with these disputes.
Release: if you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use, privacy or data. If you are a California resident, you waive California Civil Code §1542, which says: "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 settlement with the debtor." And, if you are not a California resident, you waive any applicable state statutes to a similar effect.
15. NOTICES
Notices that are required or permitted to be sent to the Company must be sent to the following mailing address by certified mail with a copy sent by e-mail.
Mucktracker, Inc.
PO BOX 320597
Brooklyn, NY 11232
E-mail: [email protected]
16. DISCLAIMER OF WARRANTIES
Your use of the website, its content, and any Services or items obtained through the Website is at your own risk.
THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
Without limiting the foregoing, you understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. Any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and you are solely responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, for maintaining a means external to our site for any reconstruction of any lost data, and for any damage to your computer system or loss of data that results from the download of any such materials.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR CONTRACTORS BE LIABLE FOR: (1) ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT; OR (2) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR IN CONNECTION WITH (A) YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THE WEBSITE, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICES.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
In no event shall the Company or its subsidiaries or affiliates or any of their respective licensors, service providers, employees, agents, officers, or directors, or contractors’ total liability to you for all damages, losses, and causes of action arising out of or relating to these Terms of Service or your use of the Services (whether in contract, tort, warranty or otherwise) exceed the amount paid by you, if any, for accessing the Services during the twelve (12) months preceding your claim or one hundred dollars ($100), whichever is greater.
18. INDEMNITY
To the extent permitted by applicable law, you agree to indemnify and hold the Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (i) content you submit, post, transmit or make available through the Service, including without limitation, User Content, (ii) your use or misuse of the Service, (iii) your connection to the Service, (iv) your violation of these Terms of Service, (v) your violation of any applicable law or the rights of another person or entity, (vi) your willful misconduct, or (vii) any other party's access and use of the Services with your unique username, password, or other appropriate security code. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
19. GOVERNING LAW AND VENUE
You agree that all matters relating to the Services and these Terms of Service and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
You agree to submit to the personal jurisdiction of the federal and state courts located in the State of Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that State of Delaware is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.
20. ARBITRATION
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY.
For any dispute with the Company, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that the Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration under the Rules of Arbitration of the American Arbitration Association (“AAA”) applying the laws of the State of Delaware. The arbitration will be conducted in State of Delaware, unless you and the Company agree otherwise. If you are a School or are using the Services for commercial purposes, each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) the AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from the AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney's fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing the Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
21. CLASS ACTION/JURY TRIAL WAIVER
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
22. GENERAL TERMS
These Terms of Service, together with any amendments and any additional agreements you may enter into with the Company relating to the Services, shall constitute the entire agreement between you and the Company and govern your use of the Service, superseding any prior agreements between you and the Company.
The failure of the Company to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision.
If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions will continue in full force and effect.
Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to these Terms of Service may be brought by either party more than one (1) year after the cause of action has accrued.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
23. COMMENTS OR CONCERNS
All feedback, comments, and requests for technical support, and other communications regarding the Website, should be directed to [email protected].
These Website and Service Terms and Conditions (“Terms of Service”) are entered into by and between you and Mucktracker, Inc. (“Mucktracker” or the “Company”). These Terms of Service govern your access to and use of www.mucktracker.com, app.mucktracker.com, www.mucktracker.net, www.Mucktracker.org, and www.mucktracker.info (collectively, the “Website”) and any content, functionality, online and/or mobile services, websites, and software provided on or in connection with the Website (collectively with the Website, the "Services"), whether as a guest or registered user, including mobile applications associated with the Website and any other Company website, app or online service which links to these Terms of Service.
Please read these Terms of Service carefully. By accessing or using the Services, you signify that you have read, understood and agree to be bound by these Terms of Service, and to the collection and use of your information as set forth in our Privacy Policy whether or not you are a registered user of our Services. These Terms of Service apply to all visitors, users, and others who access or otherwise use the Service ("you" or "Users"). If you open a Mucktracker account on behalf of a School, company, organization, or other entity, then "you" includes you and that entity.
SCHOOLS UTILIZING THE SERVICE ARE RESPONSIBLE FOR MONITORING THE RIGHTS AND INTERESTS OF THEIR STUDENTS AND MUST THEREFORE TAKE SPECIAL CARE IN THE REVIEW OF THIS AGREEMENT. SCHOOLS SHALL BE RESPONSIBLE FOR OBTAINING, WHERE APPLICABLE, PERTINENT CONSENT FROM PARENTS, LEGAL GUARDIANS OR ELIGIBLE STUDENTS PRIOR TO UTILIZING THE SERVICE. MUCKTRACKER SHALL NOT BE RESPONSIBLE FOR ANY NEGLIGENCE OF THE SCHOOL IN THE REVIEW OF THIS AGREEMENT OR THE OBTAINMENT, WHERE APPLICABLE, OF THE NECESSARY PARENTAL CONSENT.
Changes to Terms of Service: We may revise and update these Terms of Service from time to time in our sole discretion, which will be reflected in the “date last modified” at the end of these Terms of Service. If we change these Terms of Service in a material manner, we will update the “Effective Date” at the top of this page. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. If you do not agree to any of the terms in these Terms of Service or to any future terms, do not use or access (or continue to access) the Service.
Notwithstanding the foregoing, the Company shall not make any material change to the Terms of Service that relate to the collection or use of Student Data without first giving notice to the school or parent and providing a choice before the Student Data is used in a materially different manner than was disclosed when the information was collected.
In the event that you have entered into a signed, written agreement with the Company, in addition to these Terms of Service, any changes to these Terms of Service will not be effective as to you until either (a) you affirmatively accept the changes to these Terms of Service, either electronically or in a signed writing or (b) upon renewal at the end of the current term of your account. You will not be permitted to continue using the Services and the Company reserves the right to cancel your account without notice if you refuse or otherwise fail to accept changes made to these Terms of Service.
Student Data: The Services may be purchased by providers of educational services, such as schools, school districts, or teachers (collectively referred to as "Schools") that use our services for educational purposes. When the Company contracts with a School to provide the Services, we may collect or have access to Student Data (defined below), which may be provided by the School or by the student. We consider such Student Data to be strictly confidential and in general do not use such data for any purpose other than improving and providing our Services to the School or on the School's behalf, or as otherwise agreed with the School pursuant to a separate written agreement. Our collection, use and sharing of Student Data is governed by these Terms of Use, our Privacy Policy, any such separate written agreement, and any applicable laws and regulations including, in the U.S., provisions of the Family Educational Rights and Privacy Act ("FERPA"), the Children's Online Privacy Protection Act ("COPPA"), and other applicable federal and state laws. Without limiting the foregoing, if you are a School, you agree to adopt FERPA notices that permit disclosure of Student Data to Company as a “school official.” You agree to provide a copy of any applicable FERPA notice to us upon request.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. ACCESSING THE WEBSITE AND OTHER SERVICES
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users. Unless explicitly stated otherwise, any new or improved features to the Services shall be provided subject to these Terms of Service.
To access the Services, you may be asked to provide certain registration details or other information. As a condition to your use of the Services you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You agree that all such information is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms of Service.
The Company does not sell the Services to children, but only to adults who can purchase the Services with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Services only with the involvement and consent of a parent, legal guardian, or at the direction of your School. Your School may impose additional policies regarding the use of the Services, with which you must comply.
If you open an account to provide the Services to students in a School, you represent and warrant that you are an authorized representative of the School with the authority to bind the School to these Terms of Service, and that you agree to these Terms of Service on the School's behalf. You also agree you have the authority to provide consent on behalf of parents for the Company to collect information from students under 18 before allowing such students to access our Services.
2. ACCOUNT PASSWORD AND SECURITY
You will have a password and account designation upon completing the Services registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. Without limiting the foregoing, you acknowledge and agree (a) that your account is personal to you and agree not to provide any other person with access to the Website or portions of it using your user name, password, or other security information); (b) to immediately notify the Company of any unauthorized use of your password or account or any other breach of security, and (c) ensure that you exit from your account at the end of each session. We are not responsible for any unauthorized access to your account, and any ramifications of such access. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Mucktracker accounts may not be shared by more than one person or organization unless express authorization is given by the Company.
Your account belongs to you, regardless of the email address you used when signing up for the Services. However, please keep in mind that if your educational institution, organization or company disables your email address and you’re not able to log in, we won't be able to recover your account. Additionally, if you utilize the Services through a license acquired by another party for you to use (e.g., bought by your school for teaching purposes), the party paying for such feature has the right to control access to and get reports on your use of such paid feature; however, they do not have rights to your personal account.
Additional Terms: Student Users. If you are a student accessing the Service at the invitation of a teacher or other school official, the following terms apply to you:
- Only students who have been invited by their teacher, school, or district may use the Service. You may not access or use the Service unless you are invited by a teacher, school, or district who is authorized to give you access to the Service.
- We request minimal personal information to be provided from students to enable use of the Service: first name, last name, username, email and password. If you are a student, please do not provide any personal information about yourself to us, other than what we request from you when you sign up for the Service.
- The Children’s Online Privacy Protection Act (“COPPA”) prohibits online service providers from knowingly collecting personally identifiable information from children under 13 years of age without verifiable parental consent or notice as applicable (“Consent”). We only collect, use, share, and retain personal student information for purposes for which we were authorized by the educational institution/agency and teacher.
- You understand and acknowledge that COPPA prohibits online service providers from knowingly collecting personally identifiable information from children under 13 years of age without Consent, and you understand that we only collect, use, share and retain student personal information for purposes for which we were authorized by the School or teacher.
- You acknowledge and agree that you have School Consent to allow children under 13 to use the Service and that you and/or the School will be solely responsible (and hereby agree that Mucktracker is not responsible) for compliance with COPPA or any other applicable laws. This includes limiting access to the Service to those student users from whom the School has received valid Consent forms and complying with all parental requests regarding the collection, use and disclosure of such child’s information. The School is responsible for providing parental consent forms to the parents of potential student users, for confirming receipt of valid consent forms for each child before granting the student access to the Services, and for retaining such consent forms on file. If a user’s parent does not consent or rescind such School Consent, The School shall immediately notify Mucktracker to discontinue that student’s access to the Services and ensure that such student’s information is no longer accessible through the Services.
- You agree that you are acting on behalf of (or have permission from) your School to enter into these Terms of Service and to use the Service as part of your curriculum.
- You agree that you are responsible for maintaining and monitoring the accuracy of the list of students for each of your classes.
3. USER CONTENT
The Services may now or in the future allow Users to submit, post, display, provide, or otherwise make available content such as text, images, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Website is referred to as "User Content").
You are solely responsible for any User Content that you create, transmit or display while using the Services and you, not the Company, have full responsibility for such User Content, including its legality, reliability, accuracy, and appropriateness.
We claim no ownership rights over User Content created by you. The User Content you create remains yours.
You are under no obligation to submit anything to us. However, in order for us to provide the Website and certain services that you may request, we need your permission to process, display, reproduce and otherwise use User Content you make available to us. By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Services, you expressly grant to the Company and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns a perpetual, irrevocable, transferable, sub-licensable, non-exclusive, worldwide, royalty-free license and right to use, reproduce, modify, publish, perform, display, distribute, edit, translate, syndicate, make derivative works of and otherwise disclose to third parties any such User Content for use in connection with the Services and the Company’s (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Services a non-exclusive license to access your User Content through the Services, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Services and under these Terms of Service. Notwithstanding the foregoing grant, as further identified in the Privacy Policy, content that you upload or make available to the Website or other Services for the purpose of processing through or with the Services that you may request (such as personal information, addresses, financial information, and similar related data) will only be used by us for the purpose of providing the Services to you in accordance with our Privacy Policy.
You must have the legal right to the User Content you submit to the Service. You may not upload or post any User Content to the Services that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload User Content that violates any third party's right of privacy or right of publicity. You may post only User Content that you have permission to post by the by the owner or by law.
You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
- All of your User Contributions do and will comply with these Terms of Use.
We are not responsible or liable to any third party for the content or accuracy of any User Content posted or submitted by you or any other user of the Services.
You understand that by sharing information on the Website, and requesting information to be sent through the Website, you may be revealing information about yourself that you may include. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that we shall not be held responsible, and we shall be released and held harmless by you from any liability or damages arising out of such conduct.
4. PROHIBITED USES
You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Website or other Services:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm the Company or users of the Services or expose them to liability.
Additionally, you agree not to:
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Website.
- Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.Otherwise attempt to interfere with the proper working of the Website.
Monitoring and Enforcement; Termination. We have the right to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for the Company.
- Disclose your identity or other information about you to the extent permitted by applicable law to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
- Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.
However, we do not undertake to review material before it is posted on the Website and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
5. COPYRIGHT COMPLAINTS
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA").
If you believe in good faith that any User Content has been copied in a way that constitutes copyright infringement and is accessible via the Services, please contact us at [email protected].
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
It is our policy to terminate the user accounts of repeat infringers.
International Use: Recognizing the global nature of the Internet, you agree to comply with and are solely responsible for ensuring compliance with all local laws, regulations, and rules in the jurisdiction(s) in which you reside. You agree to comply with all applicable laws regarding the transmission of data exported from the United States or the jurisdiction(s) in which you reside.
6. COMPANY PROPRIETARY RIGHTS
You acknowledge and agree that the Services and the entire content, features, and functionality of the Services (including but not limited to the Website and all information, text, displays, images, video, and audio, and the design, selection, arrangement of the Website or other Services, and any necessary software used in connection with the Services ("Software")), are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Services for your personal, non-commercial use only. Under these Terms of Service, it is expressly forbidden to distribute or reproduce the content of the Services or any portion thereof by any means, including but not limited to electronic and print, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your web browser for display enhancement purposes.
- You may print one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- You may download and print a single copy of any written resource materials included in Services you have purchased from us for each student included in your membership, solely for each student’s personal, non-commercial use.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for obtaining unauthorized access to the Services.
The Company reserves the right to cancel your account without refund if it is determined that you have violated this section of the Terms of Service.
All rights not expressly granted are reserved by the Company. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
Trademarks: The Company name, the terms Mucktracker, the Company logo, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website or in any of the content included in the Services are the respective trademarks of their respective owners.
7. RELIANCE ON INFORMATION POSTED
The information presented on or through the Website is made available solely for general information or education purposes and are not intended and DO NOT constitute financial, investment, tax, or other professional advice. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents. You agree that we are not responsible for any financial, business, investment, tax, or legal decision that you may make.
This Website may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
8. INFORMATION ABOUT YOU AND YOUR VISIT TO THE WEBSITE
All information we collect on the Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
9. LINKS FROM THE WEBSITE
Mucktracker is designed as a tool to help students analyze, evaluate, and compare news sources. To provide a realistic and interactive learning experience, our Website may contain links to news media and other sites that are not owned or controlled by the Company and include features that allow you to interact and communicate with third parties. These links are provided for your convenience only. This also includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
We have no control over, do not endorse, and assume no responsibility for the content accuracy, privacy policies, or practices of or opinions expressed in any third-party websites, or the use of such websites. We do not make any representation regarding the quality, safety, suitability, or reliability of any external website or any of the content or materials contained on them. Your interactions with organizations and/or individuals found on or through the Services are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any other person.
We urge users to take adequate steps to safeguard against such things like viruses, worms and other potentially harmful malware.
When using the third-party links on our website, please remember you should review the privacy policies of those websites and the terms and conditions to get a better understanding of what, why and how they collect and use any personally identifiable information.
IF YOU ARE A SCHOOL PURCHASING THE SERVICES, YOU ARE RESPONSIBLE FOR DETERMINING WHETHER TO ALLOW OR BLOCK ACCESS TO ANY LINK PROVIDED ON OUR WEBSITE. WE ARE NOT RESPONSIBLE FOR ANY LINKS THAT DO NOT FUNCTION DUE TO BLOCKS OR FILTERS PLACED ON STUDENT INTERNET ACCESS.
10. GEOGRAPHIC RESTRICTIONS
The Company is based in the United States. We currently provide the Services for use only by persons located in the United States. We make no claims that the Services or any of the content available on the Website is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. We may restrict access to the Website or other Services from certain countries due to economic sanctions, privacy laws, intellectual property concerns, or other reasons, in our sole discretion.
11. NO RESALE OF SERVICES
You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
12. CHANGES TO SERVICES
We reserve the right to at any time and from time to time to modify or temporarily discontinue the Services (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Services. In the event of permanent discontinuance of the Services, the Company’s liability is limited to the paid subscription price, pro-rated to the amount of time remaining on the subscription.
We may update the content of the Website from time to time, but the content is not necessarily complete or up-to-date. We are under no obligation to update such content.
We may provide notifications, whether required or provided by law or otherwise, to you via e-mail notice, written or hard copy notice, or through posting of such notice on our Website, as determined by the Company in our sole discretion.
13. SCHOOL ACCOUNTS AND STUDENT DATA
This Section 13 applies to a School's use of the Service.
When our Services are used by a School for an educational purpose, we may collect or have access to Student Data that is provided by the School or by a student. "Student Data" is personally identifiable information that is directly related to an identifiable student and may include "educational records" as defined by the Family Educational Rights and Privacy Act ("FERPA”), as well as information that is not an educational record, such as student name and grade level (typically considered as “directory information” under FERPA).
The School or the student, and not Mucktracker, owns and controls the Student Data. You authorize us to access, collect, transmit, modify, display and store Student Data to provide the Service and as described in this Agreement and in our Privacy Policy.
Compliance with Laws. A School may not generally disclose personally identifiable information from an eligible student’s education records to a third party without written consent of the parent and/or eligible student or without meeting one of the exemptions set forth in FERPA (“FERPA Exemption(s)”), including the exemption for Directory Information (“Directory Information Exemption”) or disclosure to school officials with a legitimate educational interest (“School Official Exemption”). As the School providing Directory Information or any Education Record to Us, you acknowledge, affirm and pledge to Us, as applicable, that your School has:
- complied with the Directory Information Exemption, including, without limitation, informing parents and eligible students what information the Institution deems to be directory information and allow parents and eligible students a reasonable amount of time to request that schools do not disclose directory information about them; and/or
- complied with the School Official Exemption, including, without limitation, informing parents in their annual notification of FERPA rights that the Institution defines “school official” to include service providers and defines “legitimate educational interest” to include services such as the type provided by Us; or
- obtained all necessary parental or eligible student written consent to share the Directory Information and Education Records with the Company, in each case, solely to enable the Company’s operation of the Services.
Use of De-Identified or Anonymized Student Data. You agree that both before and after the term of the Agreement, we may collect, analyze, use, and retain data derived from Student Data as well as data about users' access and use of the Service, for the purpose of operating, analyzing, improving or marketing the Service, developing new products or services, conducting research or other purposes, provided that we may not share or publicly disclose information that is derived from Student Data unless such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
Use of Personal Information for Marketing. You agree that we may provide customized content, advertising, and commercial messaging to school, teacher or district administrative users and other non-student users from time to time, provided that such advertisements shall not be based on Student Data. For emphasis, and without limitation, we shall never use Student Data to engage in targeted advertising.
Disclosure of Student Data and Third-Party Service Providers. You acknowledge and agree that we may provide access to Student Data to our employees and service providers which have a legitimate need to access such information to provide their services to us. We will not share Student Data with third parties other than as described in this Agreement and in our Privacy Policy, or with consent of the School or parent.
14. THIRD-PARTY INTEGRATIONS
Our Services allow for integrations with a learning management system (“LMS”) or other third-party apps or tools to provide certain features and improve your experience when using the Services. As a result, we are obligated to make you aware of certain terms related to the use of such features. Any use of any LMS or other third-party app or tool shall be ruled by their respective terms of service. YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS APPLICABLE TO SUCH THIRD-PARTY SERVICES WHEN USING THEIR RESPECTIVE INTEGRATIONS WITH THE SERVICE.
The Company is not responsible for the actions, content, information or data of other third parties, including other users or third-party websites. You are solely responsible for your interactions with other users of the Services, and any other parties with whom you interact through the Services. We reserve the right, but have no obligation, to become involved in any way with these disputes.
Release: if you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use, privacy or data. If you are a California resident, you waive California Civil Code §1542, which says: "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 settlement with the debtor." And, if you are not a California resident, you waive any applicable state statutes to a similar effect.
15. NOTICES
Notices that are required or permitted to be sent to the Company must be sent to the following mailing address by certified mail with a copy sent by e-mail.
Mucktracker, Inc.
PO BOX 320597
Brooklyn, NY 11232
E-mail: [email protected]
16. DISCLAIMER OF WARRANTIES
Your use of the website, its content, and any Services or items obtained through the Website is at your own risk.
THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
Without limiting the foregoing, you understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. Any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and you are solely responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, for maintaining a means external to our site for any reconstruction of any lost data, and for any damage to your computer system or loss of data that results from the download of any such materials.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR CONTRACTORS BE LIABLE FOR: (1) ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT; OR (2) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR IN CONNECTION WITH (A) YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THE WEBSITE, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICES.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
In no event shall the Company or its subsidiaries or affiliates or any of their respective licensors, service providers, employees, agents, officers, or directors, or contractors’ total liability to you for all damages, losses, and causes of action arising out of or relating to these Terms of Service or your use of the Services (whether in contract, tort, warranty or otherwise) exceed the amount paid by you, if any, for accessing the Services during the twelve (12) months preceding your claim or one hundred dollars ($100), whichever is greater.
18. INDEMNITY
To the extent permitted by applicable law, you agree to indemnify and hold the Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (i) content you submit, post, transmit or make available through the Service, including without limitation, User Content, (ii) your use or misuse of the Service, (iii) your connection to the Service, (iv) your violation of these Terms of Service, (v) your violation of any applicable law or the rights of another person or entity, (vi) your willful misconduct, or (vii) any other party's access and use of the Services with your unique username, password, or other appropriate security code. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
19. GOVERNING LAW AND VENUE
You agree that all matters relating to the Services and these Terms of Service and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
You agree to submit to the personal jurisdiction of the federal and state courts located in the State of Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that State of Delaware is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.
20. ARBITRATION
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY.
For any dispute with the Company, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that the Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration under the Rules of Arbitration of the American Arbitration Association (“AAA”) applying the laws of the State of Delaware. The arbitration will be conducted in State of Delaware, unless you and the Company agree otherwise. If you are a School or are using the Services for commercial purposes, each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) the AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from the AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney's fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing the Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
21. CLASS ACTION/JURY TRIAL WAIVER
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
22. GENERAL TERMS
These Terms of Service, together with any amendments and any additional agreements you may enter into with the Company relating to the Services, shall constitute the entire agreement between you and the Company and govern your use of the Service, superseding any prior agreements between you and the Company.
The failure of the Company to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision.
If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions will continue in full force and effect.
Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to these Terms of Service may be brought by either party more than one (1) year after the cause of action has accrued.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
23. COMMENTS OR CONCERNS
All feedback, comments, and requests for technical support, and other communications regarding the Website, should be directed to [email protected].
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