Haiku Learning General Terms of Service

Effective Date: July 1, 2015

Welcome to Haiku Learning! We’re delighted to have you on our website and maybe even using our Haiku Learning sites (“Sites”), applications (“Apps”), or other related educational services (“Services”). Please continue reading to learn about the terms by which you may use our Sites, Apps and/or Services. If you have questions about this Agreement, please contact us at terms@haikulearning.com.

These General Terms of Service (the “Agreement”) applies to all schools, school districts, and related entities and organizations that sign up to use the Sites, Apps and/or Services, including but not limited to administrators who access the Sites, Apps and/or Services on their behalf (each a “School”), as well as all non-School visitors, users, and others, including students, teachers, and their parents, who use the Sites, Apps and/or Services (such individuals and Schools, collectively, “Users” or “you”). If you’re a School, our Additional Terms of Service for Schools apply as well.

By accessing or using the Sites, Apps and/or Services, checking the box marked [“I Agree”], or by otherwise affirmatively stating your desire to use our Sites, Apps and/or Services, you signify that you have read, understood, and agree to be bound by this Agreement and to the collection and use of your information as set forth in the Haiku Learning Privacy Policy, otherwise you may not use or access the Sites, Apps and/or Services. Because our Sites, Apps and/or Services change relatively often, the terms in this Agreement and our Privacy Policy may change too. If you are a School using the Services, we will notify you via email in advance of any material changes to the terms. Upon making changes, we will update the “Effective Date” found at the top of this page. Your continued use of the Sites, Apps and/or Services after any changes constitutes your acceptance of the new terms. Please note that these terms include a class action waiver and waiver of jury trials, and require binding arbitration on an individual basis to resolve disputes.

1. WHAT ARE HAIKU LEARNING’S SERVICES AND WHO CAN USE THEM?

What do we do? We provide Schools with the ability to easily create digital learning spaces where teachers, students and parents can interact in the learning experience, in addition to giving schools the ability to integrate software applications provided by other providers or created by developers (“Developers”) used by their teachers and students.

You’re allowed to use the Sites, Apps and/or Services only if you can form a binding contract with Haiku Learning, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. If you’ve been removed from the Sites, Apps and/or Services previously, you’re not allowed to use them again.

If you are under the age of 13, and responding to an invite to sign up for a student account, your parent or legal guardian must sign up for an account for you under the parent's name. Any personal information regarding a student (such as: email address, first and last name) that we collect is therefore collected from the parent or legal guardian.

Subject to the terms and conditions of this Agreement, we grant you a non-exclusive, limited, non-transferable, freely revocable license to use the Sites, Apps and/or Services. We reserve all rights not expressly granted to you under the terms of this Agreement in the Sites, Apps and/or Services and the Haiku Learning Content (as defined below).

1.1 Details about the Haiku Learning Sites, Apps and/or Services

Your Haiku Learning account gives you access to our Sites, Apps and/or Services, but you should not sign up on behalf of a School if you do not have the requisite authority to do so. Once you sign up, you are responsible for your account and any data associated with it.

Your Haiku Learning account gives you access to the Sites, Apps and/or Services and functionality we make available from time to time and at our discretion, which may include single sign-on capability for certain third-party applications using your Haiku Learning account. We maintain different types of accounts for different types of Users. If you open a Haiku Learning account on behalf of a School, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement and that you agree to this Agreement on the entity’s behalf.

Remember: you are responsible for any activity that occurs on your account, you may never use someone else’s account without permission, and you must keep your account password secure. We recommend using “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account to avoid unauthorized use. Please let us know immediately if you think your account’s security has been compromised; we are not liable for any losses of any kind caused by any unauthorized use of your account.

1.2 What Control Do I Have Over My Use of the Services?

You may control your profile and how you interact with the Sites, Apps and/or Services by changing the settings in your settings page. By providing your email address to us, you consent to our using the email address to send you Sites, Apps and/or Services-related notices, including any required legal notices and other messages, such as additions or changes to the Sites, Apps and/or Services and/or notices of product offers. You may opt out or change your preferences in your settings page. While we need your email address to send you important Sites, Apps and/or Services-related notices, you can always ask us to stop sending you certain marketing messages. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

1.3 Restricted Uses

You must not do anything to harm our product or try to hack our service. Specifically, by using the Sites, Apps and/or Services, you agree not to do any of these things: (i) copy, distribute, or disclose any part of the Sites, Apps and/or Services in any medium, including but not limited to by any automated or non-automated “scraping”; (ii) use any automated system, including but not limited to “robots,” “spiders,” “offline readers,” etc., to access the Sites, Apps and/or Services in a manner that sends more request messages to the Haiku Learning servers than a human can reasonably produce in the same period of time by using a conventional online web browser; (iii) transmit spam, chain letters, or other unsolicited email; (iv) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Sites, Apps and/or Services; (v) take any action that imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure; (vi) upload invalid data, viruses, worms, or other software agents through the Sites, Apps and/or Services; (vii) collect or harvest any third-party personally identifiable information, including account names or Student Data (as defined below), from the Sites, Apps and/or Services; (viii) use the Sites, Apps and/or Services for any commercial solicitation purposes; (ix) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity; (x) interfere with the proper working of the Sites, Apps and/or Services; (xi) access any content on the Sites, Apps and/or Services through any technology or means other than those provided or authorized by the Sites, Apps and/or Services; or (xii) bypass the measures we use to prevent or restrict access to the Sites, Apps and/or Services, including but not limited to features that prevent or restrict use or copying of any content or enforce limitations on use of the Sites, Apps and/or Services or related content. We may terminate your license at any time for any actions we deem as harmful, including but not limited to the items listed above.

We regularly update our Sites, Apps and/or Services to offer the best possible product. While we plan to continue to offer and improve our Sites, Apps and/or Services, we may, without prior notice, change, cancel, create usage limits for, or permanently or temporarily stop offering or allowing you access to the Sites, Apps and/or Services generally (“Service Changes”). While we’ll try to give you advance notice of Service Changes that will adversely affect you, this might not be practical or possible and we retain the right to make Service Changes without notice and liability for any reason. If this Agreement ends, you continue to be bound by it in any interactions you may have with the Sites, Apps and/or Services.

You are fully responsible for your interactions with other Users, and we have no liability for your interactions with any other Users, or for any User’s actions or inactions with respect to you.

2. RIGHTS IN OUR CONTENT

“Student Data” is any information (in any format) that is directly related to any identifiable current or former student that is maintained by a School, and may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”). While we may need to access Student Data to provide the Sites, Apps and/or Services to you, between us, you are the exclusive owner of the Student Data and remain responsible for it. You grant us a limited, nonexclusive license to Student Data solely for the purpose of performing our obligations under this Agreement. You grant us a limited, nonexclusive license to Student Data solely for the purpose of performing our obligations under this Agreement. Our Additional Terms of Service for Schools and Privacy Policy provide more detail concerning how we handle Student Data.

“Intellectual Property Rights” means all worldwide patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all related applications and registrations, renewals and extensions.

Haiku Learning claims no intellectual property rights over the material you provide via the Sites, Apps and/or Services (“Your Content”). Your profile and materials uploaded remain yours.

Haiku Learning does not pre-screen Your Content, but Haiku Learning and its designees have the right (but not the obligation) in their sole discretion to refuse or remove Your Content that is available via the Services.

You shall not upload, post or otherwise make available via the Haiku Learning Sites, Apps and/or Services any of Your Content protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right, and the burden of determining that Your Content is not protected by copyright rests with you. You shall be solely liable for any damages resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from Your Content, and hereby agree to indemnify, defend and hold harmless Haiku Learning for any and all claims, liabilities, damages and expenses arising from such infringement, including, but not limited to attorney fees.

Outside of Your Content, the Sites, Apps and/or Services and all materials made available to you in connection with them, including, but not limited to, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and any content belonging to other Users (the “Haiku Learning Content”), and all related Intellectual Property Rights, are the exclusive property of Haiku Learning and its licensors. Except as specified in this Agreement, nothing may be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Haiku Learning Content. To be clear: any use of the Haiku Learning Content for a purpose not expressly permitted by this Agreement is strictly prohibited.

If you send us ideas or comments about our Sites, Apps and/or Services, you agree that we may freely use or reference those ideas and comments and we do not owe you any payment or have any other obligation of any kind for such ideas or comments.

If you believe that your work has been copied and posted on our Sites, Apps and/or Services in a way that constitutes copyright infringement, send the following information to terms@haikulearning.com: (1) an electronic signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the way in which the copyrighted work has been infringed; (3) a description and a location of the content that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

3. GENERAL LEGAL TERMS

3.1 Haiku Learning Data

Certain parts of the Sites, Apps and/or Services may allow you to obtain or access analytics or other data or information associated with your account (“Haiku Learning Data”). Haiku Learning Data is licensed to you for your use on a limited basis, and is governed solely by the terms of this Agreement and available for distribution only at our sole discretion. Haiku Learning owns the account you use to access the Sites, Apps and/or Services along with any rights of access or rights to data stored by or on behalf of Haiku Learning on Haiku Learning servers (except with respect to any Student Data or Your Content that we may be storing for you), including but not limited to any data representing any or all of your Haiku Learning Data. Haiku Learning has the right to manage, control and even eliminate Haiku Learning Data, except that Haiku Learning may only use Student Data as specifically permitted by this Agreement.

This next sentence is in all caps because it’s important: YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON HAIKU LEARNING’S SERVERS MAY BE DELETED AT ANY TIME FOR ANY REASON IN HAIKU LEARNING’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIM, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON HAIKU LEARNING’S SERVERS.

3.2 Privacy and Security

We take very seriously the privacy of our users, including schools, teachers, parents, and students. By using the Sites, Apps and/or Services, you consent to the collection, use and disclosure of your information (including but not limited to Student Data) as set forth in our Privacy Policy and, if you’re a School, in the Additional Terms of Service for Schools, and to have your information (including but not limited to Student Data) collected, used, transferred to and processed in the United States pursuant to our Privacy Policy.

3.3 Third-Party Services

Our website may contain links to third-party websites, services (including but not limited to third-party applications), or other materials or information that are not owned or controlled by us. When you click on a link to a third-party website, we will not warn you that you have left the Haiku Learning Site, App or Service and are subject to separate terms and conditions and/or privacy policies. Keep in mind that we do not endorse or assume any responsibility for any third-party sites, information, materials, products, or services (including but not limited to third-party applications). If you access a third party website or application from the Sites, Apps and/or Services, you understand that you do so at your own risk, and you understand that this Agreement, the Additional Terms of Service for Schools, and our Privacy Policy do not apply to your use of those sites or applications, and that those sites or applications have their own applicable terms and policies. Additionally, your dealings with Developers found on the Sites, Apps and/or Services, including payment and any other terms (such as warranties or privacy policies), are only between you and such Developers. We are not responsible for any loss or damage of any sort relating to your dealings with such Developers. You acknowledge and agree that where Haiku Learning is listed in application stores (e.g., the Apple or Chrome application stores), the availability of the Apps and the Services is dependent on the third party from which you received the Apps.

3.4 Indemnity

You agree to defend, indemnify and hold harmless Haiku Learning and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Sites, Apps and/or Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including but not limited to your breach of any representations or warranties; (iii) your violation of any third-party right, including but not limited to any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation, including but not limited to the Children’s Online Privacy Protection Act (“COPPA”); (v) any content or information that is submitted via your account; or (vi) any other party’s access and use of the Sites, Apps and/or Services with your unique username, password or other appropriate security code.

3.5 Warranty Disclaimer

These next few sections are in all caps so we can be sure we have your attention. Again, please feel free to contact us at terms@haikulearning.com if any of this is unclear or if you have any questions about what these sections mean.

THE SITES, APPS AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SITES, APPS AND/OR SERVICES ARE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES, APPS AND/OR SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, HAIKU LEARNING, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SITES, APPS AND/OR SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SITES, APPS AND/OR SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SITES, APPS AND/OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES, APPS AND/OR SERVICES ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SITES, APPS AND/OR SERVICES.

WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SITES, APPS AND/OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITES, APPS AND/OR SERVICES OR ANY HYPERLINKED WEBSITE OR SITES, APPS AND/OR SERVICES (INCLUDING WITHOUT LIMITATION APPLICATIONS), AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SITES, APPS AND/OR SERVICES (INCLUDING WITHOUT LIMITATION DEVELOPERS). FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

3.6 Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HAIKU LEARNING, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SITES, APPS AND/OR SERVICES. UNDER NO CIRCUMSTANCES WILL HAIKU LEARNING BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITES, APPS AND/OR SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HAIKU LEARNING ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SITES, APPS AND/OR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITES, APPS AND/OR SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITES, APPS AND/OR SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SITES, APPS AND/OR SERVICES; AND/OR (VII) SCHOOL CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL HAIKU LEARNING, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $100.00.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF HAIKU LEARNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

The Sites, Apps and/or Services are controlled and operated from US-based facilities, and we make no representations that they’re appropriate or available for use in other locations. If you access or use the Sites, Apps and/or Services from other jurisdictions, you understand that you’re entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Sites, Apps and/or Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.

3.7 Arbitration

Please read this Section 3.7 (“Arbitration Agreement”) carefully. It is part of your contract with Haiku Learning and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by Haiku Learning that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Haiku Learning, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.

(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Haiku Learning should be sent to: Attn: Legal Staff, PO Box 178, Goshen, IN 46527. After the Notice is received, you and Haiku Learning may attempt to resolve the claim or dispute informally. If you and Haiku Learning do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.

(d) Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

(e) Time Limits. If you or Haiku Learning pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Haiku Learning, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Haiku Learning.

(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Haiku Learning in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND HAIKU LEARNING WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

(k) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.

(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Haiku Learning.

(m) Small Claims Court. Notwithstanding the foregoing, either you or Haiku Learning may bring an individual action in small claims court.

(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

(o) Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.

3.8 Governing Law

This Agreement will be governed by the laws of the State of New York, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods does not apply.

3.9 MISCELLANEOUS

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us in accordance with the terms of our Privacy Policy. This Agreement, together with any amendments and any additional agreements you may enter into with Haiku Learning in connection with the Sites, Apps and/or Services, including other agreements referenced herein, constitute the entire agreement between you and Haiku Learning concerning the Sites, Apps and/or Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Haiku Learning failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. If access to the Sites, Apps and/or Services is licensed to the United States government or any agency thereof, then the Sites, Apps and/or Services will be deemed to be “commercial computer software” and “commercial computer software documentation,” pursuant to DFARS Section 227.7202 and FAR Section 12.212, respectively, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Sites, Apps and/or Services and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.

You hereby release Haiku Learning Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of this Agreement or your use of the Haiku Learning Sites, Apps and/or Services.

If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

4. TERMS SPECIFIC TO USERS USING OUR SOLO TEACHER ACCOUNTS

A valid credit card is required for an upgraded solo teacher account. Free solo teacher accounts are not required to provide a credit card number. Subscriptions to Sites, Apps and/or Services will be billed in advance on a monthly basis and all charges are non-refundable. There will be no refunds or credits for partial months of service, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. For any upgrade or downgrade in individual account plan level, the credit card that you provided will automatically be charged the new rate on your next billing cycle.

Downgrading your Services may cause the loss of Your Content, features, or capacity of your account. Haiku Learning does not accept any liability for such loss.

Haiku Learning charges a late fee of 2% per month for any unpaid balance more than 30 days past due.

All of Your Content and personal information will be immediately deleted from the Services upon cancellation. If you cancel the Services before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again. Haiku Learning, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Services for any reason at any time. Such termination of the Services will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all Your Content in your account. Accounts with outstanding invoices more than 90 days past due may be deactivated at Haiku Learning's sole discretion. Haiku Learning reserves the right to refuse service to anyone for any reason at any time.

Haiku Learning reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Sites, Apps and/or Services (or any part thereof) with or without notice. Prices of all Sites, Apps and/or Services, including but not limited to monthly subscription plan fees to the Services, are subject to change upon 30 days’ advance notice from us. Such notice may be provided to individual paying customers at any time by posting the changes to the Haiku Learning website (www.haikulearning.com and my.haikulearning.com) or the Services itself or to corporate customers in writing. Haiku Learning shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services.

If you are a school, please see our Additional School Terms for additional terms that apply to your users.