Last modified December 1, 2015
This Agreement governs your use of the website https://www.getogment.com and any subdomains (the “Site”), as well as the services, features, and information available on the Site, on associated and successor sites, and on any mobile applications we provide (all of which Sites, associated and successor websites, applications, features, services and information are together referred to in this Agreement as the “Service”). BY USING OR ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE.
Changes to this Agreement.
Because we need to update our Service to keep up with changes in teacher needs and the educational landscape, we sometimes need to revise these terms as well. Therefore, we reserve the right to change, add to, supplement or delete any terms and conditions of this Agreement at any time, except with respect to Section 16.3 (Mandatory Arbitration) and the Privacy Policies (which can only be changed as stated within them). Ogment will use reasonable efforts to provide you with notification of any material changes by email, postal mail, website posting, pop-up screen, or in-service notice. Therefore, you should visit this page whenever you use the Service to review this Agreement and learn if any terms have changed. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you may reject them, but must also stop using the Service. Your continued use of the Service following any revision to this Agreement constitutes your acceptance of these changes.
Access to the Service.
2.1 Subject to your complying with this Agreement, Ogment grants you a non-exclusive, non-transferable license to use the Service for purposes of course creation for your own use in connection with your professional teaching activities and the use of others you authorize. You agree that, except as allowed by this Agreement, you will not use the Service, or download, save, copy or distribute any materials displayed or performed on the Service (including all text, graphics, articles, photos, images, illustrations, and Submissions (as defined below)) (the “Content”). You agree not to post, display, transfer or make available (including on any social media) any lessons you create using the Service if doing so does not comply with copyright and other applicable laws.
2.2 Ogment may change, modify, suspend, or discontinue the Service, impose limits on certain features, or restrict access to parts or all of the Service, upon reasonable notice where feasible. Ogment may terminate your access to the Service without notice if you violate this Agreement or for other good cause.
Ownership of Intellectual Property.
3.1 The Content that can be sourced using the Service is protected by copyright and other intellectual property laws. You agree to abide by all copyright notices, trademark rules, and other restrictions contained in any Content you access through or upload to the Service. You specifically agree not to upload to the Service any Content that you are not permitted to use (by license, fair use or otherwise) under copyright or other applicable law.
3.2 You understand that Ogment owns the Service and that you do not acquire ownership of any Content by using or downloading that Content. You agree that, except as allowed by this Agreement, you will not copy, redistribute, publish or otherwise exploit material from the Service without the express written permission of Ogment.
3.3 You will own all comments, feedback, forum statements, suggestions, and other submissions you disclose or submit to Ogment (collectively, “Submissions”); however, you grant Ogment a worldwide, perpetual, irrevocable, royal-free license (with rights of sublicense) to copy, modify, distribute, publicly display and otherwise use these Submissions (excluding any courses or lessons you create using the Service) in any manner Ogment chooses. You represent and warrant that all of your Submissions will be your original creations to which you own all rights (except as specifically noted by you) and that your Submissions do not infringe or violate the copyrights, rights of privacy or publicity, or other rights of any party.
Access by Minors.
If you provide a minor with access to use the Service, you hereby accept this Agreement on behalf of yourself and such minor, and you understand and agree that you will be responsible for all uses of the Service by that minor whether or not authorized by you.
Representations and Agreements of Schools, Districts, and Teachers.
If you are a School, District, or Teacher providing a student with access to use the Service, you hereby represent, warrant, and agree that you are authorized by such student’s parents or legal guardians to agree to the terms of this Agreement and the Privacy Policies (as the foregoing may be amended from time to time); that you have obtained all parental consents and permissions and have provided all necessary parental notices in connection with the Service required by federal, state, and local law (and all regulations and rules thereunder), including without limitation the Children’s Online Privacy Protection Act and the Family Educational Rights and Privacy Act; and if you are a Teacher providing a student with access to use the Service, you further hereby represent and warrant that you are acting as an authorized agent of the student’s School or District.
Posting and Sharing Content.
6.1 Notices and Marks. You agree that, when sharing Content or otherwise using the Service, you will include, and not remove or alter, any trademark, copyright or other proprietary rights notices provided by Ogment and will otherwise comply with any usage guidelines it may provide. You agree that all goodwill arising from using Ogment’s trademarks inures exclusively to Ogment and that you will not challenge Ogment’s ownership or control of its trademarks, nor use or adopt any trademarks that might be confusingly similar to Ogment trademarks.
6.2 Public Areas. The Service may contain community areas such as blogs, forums, or other public areas or member communities (the “Public Areas”). If you use a Public Area you are solely responsible for your own Submissions, the consequences of their posting, and your reliance on any information in the community areas or other areas of the Service. Any information you share in a Public Area is open to the public and not private. The Ogment Parties (as defined below) reserve the right, but shall not be obligated, to record any dialogue or exchanges in the Public Areas but shall have no responsibility for any actions taken, or failures to take action, with respect to the Public Areas.
You are responsible for all actions on the Service by you or under your password or account and for taking reasonable steps to ensure that unauthorized persons cannot access your password or account. In particular, it is your responsibility to (1) control the dissemination and use of any login code and password; (2) authorize, monitor, and control access to and use of your Service account and password; (3) promptly inform Ogment of any need to deactivate a password. You grant Ogment and all others involved in operating the Service the right to monitor, retrieve, store, transmit, and use any information recorded and/or stored in your account in connection with the operation of the Service.
8.1 Any Content uploaded to the Service is the sole responsibility of the person from whom it originated, and you access such Content and information at your own risk. We cannot control and have no duty to act regarding your use of the Content or what actions you may take as a result of exposure to the Content. Ogment is not liable, and you hereby release us from liability, for errors or omissions in that Content or information or for any damages or loss you might suffer.
8.2 You are responsible for all Content you contribute to the Services, and you promise us you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current.
8.3 As a condition of your use of and access to the Service, you agree to comply with any application-or content-specific rules published within the Service as well as the following usage rules, which Ogment may modify or supplement in its discretion from time to time (with notice to you of material changes, per Section 1). You agree that your activities on the Service, and those of any users to whom you provide access to the Service, will not:
Privacy and Protection of Personal Information.
Child Online Protection Act Notification.
Pursuant to 47 U.S.C. § 230(d) as amended, Ogment hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying providers of such protection is available on the websites StaySafeOnline (http://staysafeonline.org/stay-safe-online/), GetNetWise (http://www.getnetwise.org/), and OnGuardOnline (http://www.onguardonline.com/). Please note that Ogment is not affiliated with these listed sites, nor is the above intended as an endorsement of any of the products or services listed on these sites.
Family Educational Rights and Privacy Act.
You agree to comply with the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its implementing regulations, 34. C.F.R. pt. 99 (“FERPA”) when using the Service. Without limiting this commitment, you agree that (i) you will generally disclose only directory information to us, and (ii) in any case, you will obtain any and all consents needed to make such disclosures and for students to participate in the Service. You authorize Ogment to use any non-directory information provided to us to conduct studies with the purposes of improving instructions for teachers and school systems that use the Service, in accordance with 34 C.F.R 99.31(a)(6)(i).
Disclaimers; Limitations; Waivers of Liability.
12.1 YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT TO THE EXTENT THE LAW PROHIBITS A DISCLAIMER OF THAT WARRANTY).
12.2 WITHOUT LIMITING THE ABOVE, NEITHER OGMENT, NOR ITS AFFILIATES OR SUBSIDIARIES, NOR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, LICENSORS, LICENSEES OR DISTRIBUTORS, (COLLECTIVELY, THE “OGMENT PARTIES”) WARRANT THAT THE SERVICE WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, UNCORRUPTED, TIMELY, OR ERROR-FREE.
12.3 THE OGMENT PARTIES DO NOT ENDORSE OR WARRANT ANY EDUCATIONAL INSTITUTION, PROGRAM, TEACHER, PRODUCT, SERVICE, OPINION, OR INFORMATION THAT MAY BE REFERENCED ON OR THROUGH THE SERVICE. THE OGMENT PARTIES HAVE NO RESPONSIBILITY FOR ANY STUDENT-TEACHER, TEACHER-INSTITUTION OR OTHER RELATIONSHIP THAT EXISTS OR ARISES BETWEEN USERS, INSTITUTIONS OR OTHERWISE THROUGH OR IN CONNECTION WITH THE SERVICE.
12.4 THE OGMENT PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT AWARE OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE OGMENT PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU PAID OGMENT IN THE NINETY (90) DAYS PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
12.5 TO THE FULLEST EXTENT PERMITTED BY LAW, THESE DISCLAIMERS OF LIABILITY APPLY TO ALL DAMAGES OR INJURY CAUSED BY, OR RELATED TO THE USE OF OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
12.6 Release. You forever release, discharge, and covenant not to sue the Ogment Parties from any and all liability that may arise from your use of the Service or interaction with any party through the Service. In other words, you agree that you cannot sue the Ogment Parties if anything happens to you or to any person to whom you provide access to the Service or your property in connection with your use of the Service or your interaction with any party through the Service. You agree that this Section 12.6 will survive any termination of your account(s) or this Agreement.
You agree to defend, indemnify and hold harmless the Ogment Parties from and against all liability, claims, actions and expenses, including attorneys' fees and costs, arising out of your use of the Service and/or your breach or alleged breach or that of any person to whom you provide access to the Service of any term, condition, obligation, representation or warranty in this Agreement, unless caused by the Ogment Parties’ gross negligence, misconduct or violation of law. You agree that this paragraph will survive any termination of your account(s) or this Agreement.
Objectionable Content/Copyright Policy:
If you believe your rights have been violated by, or you otherwise object to, any posting, content or information on the Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your complaint includes a claim of copyright infringement, the following will apply.
Copyright Policy: It is Ogment’s policy to respond promptly to claims of copyright infringement, and to remove, or disable access to, infringing material. If you believe that any Content or materials appearing on this Service contain infringements, please send a notice to our designated agent at the address stated below. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the Content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Ogment will also terminate a subscriber's account if a subscriber is deemed to be a repeat infringer, namely, one who has been notified of bona fide infringing activity more than twice. Our designated agent, to whom you should direct your infringement claim (or other complaints), is:
83 Cambridge Street, Suite 3B
Burlington, MA 01803
Telephone Number: 617-420-2503
Third Party Sites and Products.
Governing Law/Waiver of Injunctive Relief.
16.1 This Agreement and all aspects of the Service will be governed by and construed in accordance with the internal laws of the United States and the Commonwealth of Massachusetts governing contracts entered into and to be fully performed in Massachusetts (i.e., without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.
16.2 To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“;Dispute”), you and Ogment agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to Ogment, LLC, 83 Cambridge Street, Suite 3B, Burlington, MA 01803.
16.3 Mandatory Arbitration. If you and Ogment are unable to resolve a Dispute through informal negotiations within 30 days, either you or Ogment may elect to have the Dispute (except those Disputes excluded below) resolved by binding arbitration. Any election to arbitrate by one party will be binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
16.4 Notwithstanding the above, you and Ogment agree that arbitration will be limited to the Dispute between Ogment and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
16.5 You and Ogment agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) Disputes seeking to enforce or protect, or concerning the validity of, any of your or Ogment’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief, or to compel arbitration or stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
17.1 The failure of Ogment to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under any provision of this Agreement will not be construed as a waiver or relinquishment of Ogment’s right to assert or rely upon any such provision or right in that or any other instance.
17.2 You and Ogment agree that if any portion of this Agreement, except Section 16.5, is found illegal or unenforceable by any court of competent jurisdiction, such provision will be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If Section 16.5 is found to be illegal or unenforceable then neither you nor Ogment will elect to arbitrate any Dispute falling within that portion of Section 16.5 found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Boston, Massachusetts, and you and Ogment agree to submit to the personal jurisdiction of that court.
Ogment operates and controls the Service from its offices in the United States. Ogment makes no representation that the Service is appropriate or available in other locations. The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Ogment to any registration requirement within that jurisdiction or country. Therefore, those who access the Service from other locations are solely responsible for compliance with any applicable local laws. This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Service-related materials obtained from Ogment or the Service. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from Ogment if we determine, in our sole discretion, that you failed to comply with any term or provision of this Agreement or for any reason in Ogment’s sole discretion. Following the termination of this Agreement, your account(s), or the Service, Ogment shall retain all rights to the Submissions pursuant to this Agreement. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement to any party at any time without any notice to you. You may not assign this Agreement without Ogment’s prior written consent. This Agreement (including the Ogment Privacy Policies) contains the entire understanding of you and Ogment’s, and supersedes all prior understandings between the parties concerning its subject matter, and cannot be changed or modified by you. The section headings used in this Agreement are for convenience only and will not be given any legal import. Upon Ogment’s request, you will furnish Ogment’s any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Ogment by virtue of having drafted it. You hereby waive any and all defenses you may have based on the electronic form of this Agreement, if any, and any lack of the parties hereto to execute this Agreement.
Statute of Limitations.
You and Ogment agree that any claim or cause of action arising out of or related to use of the Service or this Agreement (including the Privacy Policies) must be filed within ONE (1) YEAR after that claim or cause of action arose or it will be forever barred.