Terms of Service and Use

TERMS OF SERVICE AND USE (SELLERS)

Updated: July 2,  2013

PLEASE READ THESE TERMS OF SERVICE AND USE BEFORE ACCESSING OR USING THE MSP WEBSITE AND/OR ANY PRODUCTS OR SERVICES OFFERED ON THE MSP WEBSITE.

 

1.    Description of MSP Products and Services

The MindSpark Partners website (www.MindSparkPartners.com) (the “MSP Website”) is owned and operated by MindSpark Partners, LLC (“MSP”). The MSP Website exists to provide teachers with an online marketplace to buy and sell educational and other related products and materials (“Teaching Content”) from each other and from MSP and other providers. While the Teaching Content available for sale on the MSP Website is expected to adhere to MSP’s “Higher Level Thinking Criteria” (see here), the Teaching Content offered and sold by individual teachers (herein “Teacher-Sellers”) is  solely  the responsibility of such Teacher-Sellers  and all purchase and sales transactions involving such Teaching Content is the sole responsibility of such Teacher-Sellers and MSP does not have any responsibility for any Teaching Content or any other products or services offered for sale or sold by or on behalf of any Teacher-Sellers.    

MSP provides the MSP Website, the Teaching Content, and all other information, content, applications, plans, products and services available on the MSP Website, including the online marketplace, membership registrations, online forums, feedback loops, bulletin boards, webinars, wikis and chats (collectively the “MSP Products and Services”), pursuant to and subject to your compliance with this Terms of Service and Use Agreement, including any documents incorporated herein by reference (together this “Agreement”). Please read this Agreement carefully before accessing or using the MSP Website, registering for membership at the MSP Website, offering to sell or selling any Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services. By accessing and using the MSP Website, registering for membership at the MSP Website, offering to sell or selling Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you accept to be bound by the terms and conditions of this Agreement without limitation, qualification or change by you and you agree that this Agreement constitutes “a writing signed by you” under any applicable law or regulation.  If at any time you do not accept all the terms and conditions of this Agreement, which may be modified by MSP at any time in its discretion and without direct notice (unless prior notice is required by law), you must immediately discontinue use of the MSP Website and the MSP Products and Services.            

Certain MSP Products and Services are available to all visitors and users of the MSP Website free of charge. Other MSP Products and Services are available only to registered members (“Members”) (See Section 4A below).

In this Agreement, “we”, “us” or “our” refer to MSP, and “you” or “your” refer to each visitor, user, customer, or Member of the MSP Website and/or the MSP Products and Services.         

2.   You Must Be At Least 18 Years of Age

The MSP Website and the MSP Products and Services are not intended for minors. You must be at least 18 years of age in order to access or use the MSP Website, register for membership at the MSP Website, offer to sell or sell Teaching Content on the MSP Website, or access or use any other MSP Products and Services. 

3.   Sales of Teaching Content in Digital Format Only

All Teaching Content offered for sale and/or sold on the MSP Website must be in digital format for electronic delivery to purchasers (“Teacher-Buyers”) via download on the MSP Website.  No physical (i.e., non-digital) sales of Teaching Content can be made on the MSP Website or by utilizing, directly or indirectly, any other MSP Products and Services and you are not authorized to use the MSP Website or any other MSP Products and Services for such activities and transactions and MSP expressly disclaims any representations or warranties, whether express or implied, with respect to or in connection with any such activities and transactions.          

4.   Membership Fees, Service Fees, Pricing and Net Payments

     A.  Membership Fees. In order for you to have access to certain MSP Products and Services or to sell Teaching Content on the MSP Website, you must join the MSP Website as a member (a “Member”). Two types of MSP memberships are available: (i) Basic level membership and (ii) Partners Plus level membership. Basic level Members pay MSP no annual membership fee and have access to certain MSP Products and Services available from time to time but are not permitted to sell Teaching Content on the MSP Website. Partners Plus level Members pay MSP an annual membership fee of $19.95, have access to certain MSP Products and Services available from time to time, and are permitted to sell Teaching Content on the MSP Website. Partners Plus Members will be charged service fees on sales made on the MSP Website, as described in greater detail in Section 3B below. A Member can upgrade membership from Basic to Partners Plus at any time upon notice to MSP through the “Partner Now” link at the MSP Website and upon payment of the Partners Plus membership fee. In the event of cancellation, any Teaching Content of the exiting member which was uploaded to the MSP Website will be removed from the site.

     B.  MSP Service Fees.  In consideration for the services provided by MSP to Teacher-Sellers, each Teacher-Seller agrees to pay to MSP, in addition to any applicable membership and other fees provided for in this Agreement, a service fee ("Service Fee") for all Teaching Content sold by such Teacher-Seller on the MSP Website, equal to twenty percent (20%) of the sale price of each item of original digital Teaching Content sold plus .30 cents per item. MSP will automatically deduct the Service Fees due and owing as set forth in this Section 3B directly from the sale price collected by MSP from each Teacher-Buyer at the time the Teaching Content is sold on the MSP Website.  Net amounts due and owing to a Teacher-Seller in respect of Teaching Content sold on the MSP Website will be distributed to the Teacher-Seller on a monthly basis as described in Section 3D below.

     C.  Conversion Fees.  If MSP determines that any Teaching Content does not incorporate or adhere to its “Higher Level Thinking Criteria” (see here). MSP may offer to modify such Teaching Content to ensure that it does incorporate and/or adhere to such criteria and Teacher-Seller agrees to pay to MSP, in addition to the other fees herein, a Conversion Fee as agreed with MSP. This agreed Conversion Fee will be paid by a Teacher-Seller to MSP or may be deducted from amounts due and owing by MSP to such Teacher-Seller, as MSP determines to be appropriate from time to time.

     D.  Pricing of Teaching Content.  Pricing for Teaching Content available on the MSP Website will be initially established by MSP and may thereafter vary depending upon demand and product reviews.  Teacher-Sellers agree to offer for sale and sell their Teaching Content only at the prices listed on the MSP Website. Teacher-Sellers may not charge shipping, handling, processing or other similar fees in regard to any Teaching Content sold on the MSP Website.

     E.  Pricing Promotions.  MSP reserves the right to determine, advertise and offer promotional or discounted fees and pricing on such terms and at such times as it determines to be appropriate in its discretion and without liability to any Teacher-Seller or any other person. No Teacher-Seller shall be entitled to any refund, offset, adjustment or other consideration whatsoever in respect of any transaction, fee or activity prior to the implementation of any promotional or discounted fees or pricing.

     F.   Monthly Net Payments to Teacher-Sellers.  

          (1)    All payments from Teacher-Buyers in respect of Teaching Content sold on the MSP Website will be paid over directly to MSP by the Teacher-Buyer at the time of a sale transaction. MSP will notify a Teacher-Seller by email of the sale of his Teaching Content on the MSP Website once MSP has verified and received payment from the Teacher-Buyer, whereupon MSP will make any purchased digital Teaching Content available for download by the Teacher-Buyer on the MSP Website, provided such Teaching Content has been uploaded by the Teacher-Seller to the MSP Website.  It is the Teacher-Seller’s responsibility to ensure that Teaching Content offered for sale on the MSP Website corresponds to the offer description and is available for download by the Teacher-Buyer in accordance with the terms of this Agreement and MSP shall have no liability, including to Teacher-Seller or any Teacher-Buyer, if Teaching Content is not available for download.     

          (2)   MSP will deduct from each payment made by a Teacher-Buyer the Service Fees due and owing to MSP in respect of such sale transaction as set forth in Section 3B. MSP will also deduct from payments made by Teacher-Buyers any other amounts due and owing to MSP by the particular Teacher-Seller, including any unpaid membership fees and any unpaid Conversion Fees and Alignment Fees/

          (3)    After deducting Services Fees, unpaid membership fees, Conversion Fees and Alignment Fees and other amounts due and owing to MSP pursuant to this Agreement, MSP will pay over to the Teacher-Seller the net positive balance, if any, accrued in respect of sales of such Teacher-Seller’s Teaching Content on the MSP Website. Such net payments shall be made by MSP within 21 days after the end of each month. These monthly payments will be made to Teacher-Sellers via PayPal®.  Each Teacher-Seller is solely and exclusively responsible for collecting and remitting any and all sales and other taxes or assessments imposed on or in connection with any transactions conducted on the MSP Website.  

5.   Representations and Warranties by Teacher-Sellers  

As a Teacher-Seller, you hereby state, represent and warrant to MSP and to Teacher-Buyers, including prospective Teacher-Buyers, as appropriate, that: (a) all information provided or disclosed by you to MSP as part of your membership registration (“Member Data”) is true, accurate, current and complete; (b) you will maintain and promptly update your Member Data to ensure that it remains true, current, accurate and complete; (c) all information provided, listed or disclosed by you or in your behalf on the MSP Website is and will remain true, accurate, current and complete and is not and will not be misleading or otherwise deceptive; (d) all Teaching Content offered for sale and/or sold by you on the MSP Website is original to you and you own and/or possess any and all intellectual property rights, including copyrights, to such Teaching Content and no other party has any such rights in or to such Teaching Content; (e) you will retain all intellectual property rights, including copyrights, to all Teaching Content offered for sale and/or sold on the MSP Website; and (f) you otherwise have the full right, ability and legal authority to access and use the MSP Website, register for membership at the MSP Website, offer to sell and sell Teaching Content, and to access or use other MSP Products and Services on the MSP Website.    

6.   Additional Agreements and Obligations of Teacher-Sellers.

As a Teacher-Seller, you hereby agree: (a) to make at least one digital sample of all Teaching Content available to Teacher-Buyers at no charge at all times when you are offering original digital Teaching Content for sale on the MSP Website; and (b) without the express prior written consent of MSP and/or a Teacher-Buyer, as the case may be, not to use or disclose, and to ensure that your affiliates, agents, employees and contractors do not use or disclose, to any third party, any order or other data or information regarding Teacher-Buyers or any other visitors, users or members of the MSP Website which is obtained through the MSP Website or any other MSP Products and Services and/or is disclosed or provided to you by MSP in connection with a sale of Teaching Content or MSP Products and Services on the MSP Website except as necessary to complete a sale of Teaching Content or MSP Products and Services on the MSP Website and/or to otherwise fulfill your obligations under this Agreement (including, without limitation, for purposes of solicitation, advertising, direct marketing, harassment, invasion of privacy or any other objectionable conduct), and MSP shall have no responsibility or liability in connection with the failure by a Teacher-Seller to abide by the foregoing; (c) to pay over to the appropriate authorities any and all taxes arising from or in connection with any transactions you conduct on the MSP Website; and (d) to assume full responsibility for the Teaching Content.   

As a Teacher-Seller, you also hereby acknowledge and agree that: (a) MSP does not screen or otherwise independently confirm or verify the identity or legal or other attributes or authority of any Teacher-Buyer or other visitor, user or Member of the MSP Website or any user of other MSP Products and Services; (b) all interactions (if any) you have with a Teacher-Buyer or any other visitor, user or Member of the MSP Website or any user of other MSP Products and Services, including offers to sell, sales, offers to purchase, purchases, payments for and/or deliveries of Teaching Content and/or any other goods or services whatsoever, on the MSP Website or otherwise, and any other terms, conditions, warranties or representations associated with, related to or offered in connection with such activities and transactions, are solely and exclusively between you and such Teacher-Buyer, visitor, user or Member; (c) MSP is not a party to any sale transaction made on the MSP Website in respect of Teaching Content sold by Teacher-Sellers and MSP is not involved in any actual transaction between Teacher-Sellers and Teacher-Buyers; (d) MSP is not your agent or representative or an agent or representative of any Teacher-Buyer (or any other visitor, user or Member) for any purpose whatsoever; (e) MSP is not responsible for any claims, liabilities, losses or damages arising from or related in any way to any transactions or other activities between you and any Teacher-Buyer or other visitor, user or Member of the MSP Website and (f) MSP is not responsible for any claims, liabilities, losses or damages arising from or related in any way to any Teaching Content, including any claims, liabilities, losses or damages arising from or related to any assessment and/or conversion and/or alignment of Teaching Content to incorporate and/or adhere to MSP’s Higher Level Think Criteria.

MSP does not transfer legal title or ownership of your Teaching Content or any other goods from Teacher-Seller to Teacher-Buyer.  Revised Statutes of Missouri §400.2-401(2) and Uniform Commercial Code  §2-401(2) apply to the transfer of ownership between Teacher-Sellers and Teacher-Buyers, and provide that, unless otherwise expressly agreed between a seller and a buyer, legal title or ownership of an item transfers to buyer upon physical delivery of the item to buyer from seller.  

7.   Teaching Content Licenses

     A.    License To MSP.  As a Teacher-Seller, you retain all ownership rights and title to all original copyrightable content (e.g., original Teaching Content) which you offer for sale on the MSP Website; provided, however, that by offering Teaching Content for sale on the MSP Website, you hereby grant MSP a non-exclusive, royalty-free, perpetual, irrevocable (except as expressly set forth in this Agreement), worldwide, sublicensable right to exercise any and all copyright, trademark, publicity and database rights (but no other rights) you have in the Teaching Content, in any media now known or later developed, as reasonably necessary to make the Teaching Content available for sale on the MSP Website.  This license to MSP will terminate at the time you cancel your MSP membership and remove all of your Teaching Content from the MSP Website. 

     B.   Licenses to Teacher-Buyers.  Because the Teaching Content offered for sale and/or sold by you (as Teacher-Seller) on the MSP Website is original to you and, as such, you have all ownership rights and title to such Teaching Content, you control the licenses granted to Teacher-Buyers in respect of your Teaching Content (subject to the MSP license described in Section 7A above). It is your responsibility to notify Teacher-Buyers of the license terms under which you are offering your Teaching Content on the MSP Website.  Absent any contrary terms expressly set forth in your offer of Teaching Content, Teacher-Buyers shall have such rights to reproduce, prepare derivative works from, distribute, display and otherwise use your Teaching Content as permitted under the Copyright Act of 1976 (17 U.S.C.  §§ 101 et seq.) , including, but not limited to, those rights under §110(1) (classroom teaching), §110(2) (distance learning) or §107 (fair use) of such Act.  

8.   User Code of Conduct

As a condition of accessing or using the MSP Website, registering for membership at the MSP Website, offering to sell or selling any Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you agree to all of the following:

  • You must be a registered Member to sell Teaching Content on the MSP Website.
  • You are required to select a member identification ("UserName") and password in conjunction with membership registration. You are responsible for maintaining the confidentiality of your UserName and password and you are encouraged not to disclose that information to anyone who does not need to know it.
  • You are responsible for all activity that occurs under your UserName.
  • You are solely responsible for your conduct and any content, materials or information that you submit, post, and display on the MSP Website, including any Teaching Content, or that you allow others to submit, post and/or display on the MSP Website under your UserName.
  • You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any system, security technology or other software that is part of the MSP Website or used to administer the rules contained in this Agreement.

By accessing or using the MSP Website, registering for membership at the MSP Website, offering to sell or selling any Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you also agree that you will not:

  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website any unsolicited advertisements, promotional materials, junk email, bulk email (also known as “spam”), chain letters, surveys or contests, or solicit participation in any pyramid schemes.
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website  any unlawful (according to local, state, federal, or international law or regulation) postings on or through the MSP Website, or any postings which advocate illegal activity.
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website, or provide links to, any postings containing material that could be considered harmful, obscene, pornographic, indecent, lewd, violent, abusive, profane, insulting, threatening, harassing, hateful or otherwise objectionable.
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website, or provide links to, any postings containing material that harasses, victimizes, degrades, or intimidates an individual or group of individuals on the basis of religion, race, ethnicity, sexual orientation, gender, age, or disability.
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website, or provide links to, any postings containing defamatory, false or libelous material.
  • Use the MSP Website or any other MSP Service to “stalk” or otherwise harass any other person.
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website any posting that infringes or violates any intellectual property or other right of any entity or person, including, without limitation, copyrights, patents, trademarks, laws governing trade secrets, rights to privacy, or publicity.
  • Upload, post, email, transmit, deliver or otherwise make available for sale or sell on or through the MSP Website any posting to that you do not have a right to make available under law or contractual or fiduciary relationships.
  • Impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity, or adopt a false identity if the purpose of doing so is to mislead, deceive, or defraud another.
  • Manipulate identifiers, including by forging headers or employing misleading email addresses or IP addresses, in order to disguise the origin of any posting that you deliver.
  • Deliver any posting containing personal information, such as phone numbers, social security numbers, account numbers, addresses or employer references.
  • Upload, post, email, transmit, deliver or otherwise make available for sale or sell on or through the MSP Website any stolen goods or any products or services which may not be legally offered for sale and/or sold.
  • Upload, post, email, transmit, deliver or otherwise make available for sale or sell on or through the MSP Website any materials that infringe a patent, trademark, trade secret, copyright or other intellectual property right of another person or entity or that violate any rights of privacy or publicity, or that defame or libel any person or entity, or offer content that you do not have a right to make available under any law or under contractual or fiduciary relationships (including without limitation any goods purchased or obtained by you without right of resale such as promotional materials or school market-restricted materials.
  • Manipulate the price of any Teaching Content or interfere with any other Member’s’ listing of Teaching Content.
  • Use the MSP Website or any other MSP Products and Services in any manner which could damage, disable, overburden, or impair or otherwise interfere with the use of the MSP Website, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment.
  • Attempt to gain unauthorized access to the MSP Website, any related website, other accounts, computer system, or networks connected to the MSP Website, through hacking, password mining, or any other means.
  • Obtain or attempt to obtain any materials or information through any means not intentionally made available through the MSP Website, including harvesting or otherwise collecting information about others such as email addresses.
  • Use Web-accelerated browsers or products (including but not limited to NetJet, NetSonic, MSIECrawler and Teleport-Pro), or other applications that are capable of copying large portions of content from the MSP Website.  MSP may detect the use of these systems through live log file analysis and will ban any future use by offenders.
  • Use robots, crawlers, spiders, data mining tools or other automated means to download data from the MSP Website, excepting only internet search engines (e.g. Google or Yahoo!) and non-commercial public archives that comply with our robot.txt file or are “well-behaved” web services/RSS/Atom clients, as we determine to be appropriate from time to time in our discretion.
  • Use any device, software or routine or the like to interfere or attempt to interfere with any MSP Website functionality.
  • Take any action that imposes an unreasonable or disproportionately large load on the MSP Website infrastructure, including by engaging in “flooding attacks.”
  • Use any email addresses appearing on the MSP Website for purposes not relating specifically to the MSP Website.
  • Access the MSP Website by any means other than through the interface that is provided by MSP, or attempt or access any area of the MSP Website to which your access is not authorized.
  • Reverse engineer, reverse assemble or otherwise attempt to discover any source code relating the MSP Website, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

9. User-Submitted Content 

MSP will use reasonable efforts to restrict conduct and/or eliminate content, information or materials from the MSP Website which violate the policies set forth in this Agreement. However, you recognize and agree that MSP does not pre-screen content (including Teaching Content) other than for compliance with MSP’s “Higher Level Thinking Criteria”, information or materials available through the MSP Website or other MSP Products and Services, and MSP may not be able otherwise to prevent, restrict and/or immediately eliminate any and all offending conduct and/or content, information or materials from the MSP Website.  Consequently, you further acknowledge and agree that (i) MSP is not and cannot be responsible for any content including any Teaching Content (whether or not assessed and/or converted and/or aligned by or in behalf of MSP to incorporate Higher Level Thinking Criteria, information or materials made available through the MSP Website or any other MSP Products and Services by any third party, (ii) you may be exposed to such materials, information or content, and (iii) you bear all risks associated with the exposure to and/or use of any such materials, information or content, including without limitation any reliance on the accuracy, completeness, or usefulness of such materials, information or content.

In all events, MSP shall have the right (but not the obligation) in its sole discretion to refuse, move or remove any content including Teaching Content information or materials that is made available through the MSP Website.  Without limiting the generality of the foregoing, MSP and its designees shall have the right to remove any content that violates this Agreement or is otherwise objectionable, as we determine in our discretion. You specifically agree that MSP is not responsible for any content sent using and/or included in the MSP Website or in any other MSP Products and Services by any third party.

10.   User Communication Services

The MSP Website may contain bulletin board services, news groups, webinars, forums, blogs and/or other message or communication facilities ("Communication Services") designed to enable you to communicate with others. You agree to use the Communication Services only to submit or post messages and material that are proper and, when applicable, related to the particular Communication Service. You are also prohibited from submitting to, posting or transmitting through the MSP Website, via any Communications Services or otherwise, any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. Content that consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" is prohibited.  You may not use a false or unauthorized email address or postal address, impersonate any person or entity, or otherwise mislead as to the origin of your posted content.

Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties are those of the respective authors or distributors and not of MSP, nor any of its officers, directors, employees, or agents. You acknowledge that MSP does not pre-screen all content, but that MSP and its designees shall have the right (but not the obligation) in their sole discretion to refuse, move or remove any content that is made available via the Communication Services. Without limiting the foregoing, MSP and its designees shall have the right to remove any content that violates this Agreement or is otherwise objectionable, as we determine in our discretion. You specifically agree that MSP is not responsible for any content sent using and/or included in the Communications Services by any third party.

11.  Links to Third Party Sites

The MSP Website may contain links to websites, applications or other services operated by third-parties, including, without limitation, the sites of our sponsors or others (the “Linked Sites”).  MSP does not endorse the content on any Linked Sites and is not responsible for the content of any Linked Sites or any websites framed within the MSP Website, or third-party advertisements on the MSP Website, and we do not make any representations regarding their content or accuracy. Any transaction that you conduct at a third-party website will be between you and the party providing that website. This means that MSP is not your agent and is not a party to any transaction at a Linked Site. If you choose to access any third-party site (including any Linked Site), you do so at your own risk, and your use of that site is subject to its own terms of use and privacy policy, which you should review. The presence of a link to a third-party site (including any Linked Site) does not constitute or imply MSP’s endorsement, sponsorship, or recommendation of the third party or of the content, products, or services contained on, or available through, the site.

12.   Software and Downloads Available Through the MSP Website

Any software that is made available to access, use, view and/or download in connection with the MSP Website (“Software”), including applications, podcasts, audio streaming, or video streaming, is owned or controlled by MSP, one or more companies commonly owned by or with MSP, and/or their licensors and suppliers, and is protected by copyright laws and international treaty provisions. Your use of the Software is limited to private, non-commercial use and is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software. MSP accepts no responsibility or liability in connection with any Software owned or controlled by third parties

 

13.   Copyright Policy

We respect the intellectual property rights of others, and we ask that you do the same. It is our policy to disable access to or remove material that we believe in good faith to be infringing on a copyrighted work. We will also disable and/or terminate the accounts of Members who we believe are infringing copyrighted works. Our Copyright Policy has been developed in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable laws, and is available by clicking here. By accepting these Terms of Service, you agree to be bound by our Copyright Policy, which is by this reference expressly incorporated into this Agreement.

14.   Privacy Policy

MSP has developed a Privacy Policy in order to inform you of its practices with respect to the collection, use, disclosure and protection of personal information. You can find the Privacy Policy, which is incorporated into this Agreement, by clicking here, and by accessing or using the MSP Website, registering for membership at the MSP Website, offering to sell or selling any Teaching Content on the MSP Website, and/or accessing or using any other MSP Products and Services, you agree to the terms of the Privacy Policy.

15.   LIMITATION OF DAMAGES AND LIABILITY 

IN NO EVENT SHALL MSP OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, MEMBERS, SHAREHOLDERS OR OTHER AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO (i) loss of goodwill, business, revenue, profits, use, data, business opportunity, or other economic advantage; (ii) your inability to use, unauthorized use of, performance or non-performance of the MSP Website, the Teaching Content, or any other MSP Products and Services; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained on the MSP Website, in the Teaching Content, or in any other MSP Service or any information, software, products, services, and related graphics obtained through the MSP Website, in the Teaching Content, or in any other MSP Products and Services; (vi) errors and inaccuracies contained in any Teaching Content as a result of any assessment or conversion and/or alignment of such Teaching Content performed by or in behalf of MSP; (vii) any transactions entered into through the MSP Website, including any transactions to assess, convert, align and/or sell any Teaching Content; (viii) any property damage including damage to your device or computer system caused by viruses or other harmful components, during or on account of access to or use of the MSP Website or any site to which it provides hyperlinks; or (ix) damages otherwise arising out of the use of the MSP Website, the Teaching Content, and/or any other MSP Products and Services.

THESE LIMITATIONS SHALL APPLY REGARDLESS OF HOW ANY ALLEGED DAMAGES ARISE, WHETHER IN AN ACTION IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORTIOUS ACTION, OR ARISING OUT OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE MSP WEBSITE OR MATERIALS AVAILABLE FROM OR THROUGH THE MSP WEBSITE, INCLUDING TEACHING CONTENT, EVEN IF MSP OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP OR THEIR AGENTS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF THIS LIMITATION OF LIABILITY, OR THE EXCLUSION OF REPRESENTATIONS AND WARRANTIES BELOW, IS HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE MAXIMUM LIABILITY OF MSP AND/OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND/OR ANY OF THEIR AGENTS FOR ANY TYPE OF DAMAGES SHALL BE LIMITED TO U.S. $100.00.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

YOU HEREBY ACKNOWLEDGE THAT YOU UNDERSTAND THAT BY ACCESSING AND USING THE MSP WEBSITE, TEACHING CONTENT OR ANY OTHER MSP PRODUCTS AND SERVICES AND AGREEING TO THE TERMS OF THIS AGREEMENT, YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. IF YOU ARE A CALIFORNIA RESIDENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVE, §1542 OF THE CIVIL CODE OF CALIFORNIA, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." FURTHERMORE, IF YOU ARE A RESIDENT OF ANOTHER STATE OR JURISDICTION, YOU AGREE TO WAIVE IN ADVANCE ANY SIMILAR LAWS OF SUCH OTHER STATE OR JURISDICTION.

16.   DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR USE OF, AND RELIANCE ON, ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH THE MSP WEBSITE, THE TEACHING CONTENT, AND/OR ANY OTHER MSP PRODUCTS AND SERVICES IS AT YOUR OWN RISK.  THE MSP WEBSITE AND ALL CONTENT (INCLUDING TEACHING CONTENT), SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHICS, AND OTHER MATERIALS CONTAINED WITHIN OR AVAILABLE THROUGH OR FOUND AT THE MSP WEBSITE AND/OR IN ANY OTHER MSP PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS", “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND BY MSP OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP OR THEIR AGENTS.  MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE MSP WEBSITE OR THE INFORMATION, CONTENT (INCLUDING TEACHING CONTENT) OR MATERIALS INCLUDED ON THE MSP WEBSITE. TO THE FULLEST EXTENT PERMITTED BY LAW, MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, INFORMATIONAL CONTENT, TITLE, OR NON-INFRINGEMENT OF THE RIGHTS OF THIRD-PARTIES. MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS MAKE NO REPRESENTATION OR WARRANTY THAT THE MSP WEBSITE WILL BE AVAILABLE OR ACCESSIBLE AT ANY PARTICULAR TIME OR WILL OPERATE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MSP WEBSITE AND/OR ITS SERVER WILL BE FREE OF VIRSUES AND/OR OTHER HARMFUL COMPONENTS.  MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY MATERIAL OF ANY KIND CONTAINED WITHIN OR AVAILABLE THROUGH THE MSP WEBSITE, INCLUDING THE TEACHING CONTENT, FOR ANY PURPOSE, INCLUDING SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHIC CONTENT.  MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS ARE NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS IN TRANSMISSIONS OR RECEIPTS OF ANY INTERACTIVE SERVICES, OR ANY COMPUTER VIRUS OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE. MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING ANY ASSESSMENT OF TEACHING CONTENT AND/OR ANY CONVERSION AND/OR ALIGNMENT OF TEACHING CONTENT TO INCORPORATE AND/OR ADHERE TO MSP’S HIGHER LEVEL THINKING CRITERIA, INCLUDING ANY CONVERSION AND/OR ALIGNMENT PERFORMED BY MSP OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP OR THEIR RESPECTIVE AGENTS.

17.   Indemnification. 

You agree to indemnify, defend and hold harmless MSP and any company commonly owned by or with MSP and their respective officers, directors, managers, employees, members, shareholders, agents, and licensors from and against any and all claims, causes of action, demands, liabilities, damages, losses, expenses (including reasonable attorneys' fees and costs) and assessments (including tax assessments) arising out of or in any way related to: (a) your access to or use of the MSP Website, the Teaching Content, or any other MSP Products and Services; (b) your membership at the MSP Website; (c) any product, content (including Teaching Content), information or materials available on or through the MSP Website whether or not any such Teaching Content has been assessed and/or converted and/or aligned by MSP to incorporate or adhere to MSP’s Higher Level Thinking Criteria (d) any dispute between you and any Teacher-Buyer or any other person in regard to the Teaching Content or any other matter whatsoever; (e) your breach or purported or threatened breach of any provision of this Agreement or any warranty you provide herein, or (f) your violation or purported or threatened violation of any applicable laws, rules, regulations or rights. You agree to cooperate fully with MSP and any company commonly owned by or with MSP and their agents in asserting any available defenses in connection with a claim subject to indemnification by you under this Agreement.  

18.   Third-Party Merchants; Advertisements, Sponsorships, Co-Promotions and Other Partnerships

The MSP Website may enable you to order and receive products, information and services from businesses that are not owned or operated by MSP. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the merchandise, services or information, opinion or advice ordered or received from such businesses are solely between you and such businesses. MSP does not endorse, warrant, or guarantee such products, information, or services, and is not liable for the accuracy, completeness, or usefulness of such information or the quality of availability of such products or services. MSP will not be a party to or in any way responsible for monitoring any transaction between you and third-party providers of such products, services, or information, or for ensuring the confidentiality of your credit card information. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility and are not part of the fee, if any, charged for any MSPs and Services. 

MSP may display advertisements for the goods and services of a third party on the MSP Website, including in connection with co-promotions, sponsorships and other similar partnership arrangements. MSP does not endorse or represent and is not responsible for the safety, quality, accuracy, reliability, integrity or legality of any such goods or services advertised, promoted or displayed on the MSP Website or in any MSP Products and Services.

19.   Termination

MSP reserves the right to suspend or terminate, or take any other action or remedy that we deem reasonable, appropriate or necessary, in our sole discretion, with respect to your Member account immediately, without prior notice or liability, for any reason. If we terminate your account, your right to access or use the MSP Website or any other MSP Products and Services will immediately cease. You may terminate your Member account at any time and for any reason, and we will make available through the MSP Website reasonable means for you to do so. All provisions of this Agreement will survive termination, including, without limitation, ownership provisions, licenses, warranty disclaimers, indemnity, and limitations of liability.

20.  International Use/U.S. Export Controls

You recognize that accessing materials on the MSP Website by certain persons in certain countries may not be lawful, and MSP makes no representation that the Teaching Content or other materials available on or at the MSP Website are appropriate or available for use in locations outside the United States. If you choose to access the MSP Website from outside the United States, you do so at your own risk and initiative, and are responsible for compliance with any applicable local laws.

The United States controls the export of any software downloadable from the MSP Website. No software or any other materials associated with the MSP Website may be downloaded or otherwise exported or re-exported to countries or persons prohibited under export control laws, including but not limited to countries against which the United States has embargoed goods, or to anyone on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Deny Orders. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any such materials. By using and/or downloading any such materials from the MSP Website, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country to which such import, export, or re-export is prohibited or are not a person or entity to which such export is prohibited.

21.   Your Additional Representations and Warranties

You represent and warrant to MSP that: (a) you possess the legal right and ability to enter into this Agreement; (b) all information submitted by you to MSP, including on or through the MSP Website, is true and accurate; and (c) you are at least 18 years old.

22.   Miscellaneous Provisions

     A.   MSP Property and Rights.  The MSP Website and all content, text, photographs, images, illustrations, graphics, video material, audio material, software, MSP logos, titles, characters, names, graphics and button icons on the MSP Website (excluding the Teaching Content) (collectively the “MSP Intellectual Property”), are protected by copyright, trademark and other laws of the United States, as well as international conventions and the laws of other countries. The MSP Intellectual Property is owned or controlled by MSP or by other parties that have provided rights thereto to MSP.

You may not, and agree that you will not, reproduce, download, license, publish, enter into a database, display, modify, create derivative works from, transmit, post, distribute or perform publicly by any means, method, or process now known or later developed, de-compile, reverse engineer, disassemble, use on another computer-related environment, transfer or sell any MSP Intellectual Property, in whole or in part, without the express written permission of MSP or as otherwise permitted in this Agreement; provided, however, that you may download one copy of information on the MSP Website on a single computer for your own personal, non-commercial use provided you are in compliance with this Agreement.  

Other trademarks, service marks, product names and company names or logos appearing on the MSP Website or any other MSP Products and Services that are not owned by MSP may not be used without express permission from their owners. Additionally, unless otherwise restricted or prohibited by MSP or in this Agreement, websites may link, by hyperlink or otherwise, to the MSP Website homepage and any age beyond the homepage of the MSP Website, and/or frame the MSP Website, or any web page or material herein, and may include a link to any aspect of the MSP Website in an email for commercial purposes.

      B.  Governing Law; Dispute Resolution.  This Agreement is governed by and shall be construed in accordance with the laws of the State of Missouri USA, without regard to principles of conflict of laws, and is deemed to be made at MSP’s offices in St. Louis County, Missouri USA. To the extent you have in any manner violated or threatened to violate the intellectual property rights of MSP and/or any company commonly owned by or with MSP, then MSP and/or such commonly owned company may seek injunctive or other appropriate relief in any state or federal court in the State of Missouri USA, and you consent to exclusive jurisdiction and venue in such courts. Any other disputes will be resolved as follows:

          (1)   If a dispute arises under this Agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in St. Louis County, Missouri USA. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.

          (2)   If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration in St. Louis County, Missouri USA, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.

By using the MSP Website, you expressly agree that your rights and obligations shall be governed by and interpreted in accordance with the laws of the State of Missouri USA, excluding its choice of law rules.  Any legal action or proceeding relating to your access to or use of or any other matter relating to this Agreement or your access to or use of the MSP Website, the Teaching Content, or any other MSP Products and Services shall be instituted in the Circuit Courts of St. Louis County, Missouri USA or the United States District Courts for the Eastern District of Missouri USA.  We and you agree exclusively and irrevocably to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal proceeding or action.  These Terms of Use expressly exclude and disclaim the U.N. Convention on Contracts for the International Sale of Goods, which shall not apply to any transaction conducted through or otherwise involving the MSP Website.

     C.   Consent to Electronic Notices and Other Communication. You agree that all of your transactions with us relating to this Agreement, the MSP Website, the Teaching Content or any other MSP Products and Services may, at our option, be conducted electronically, including any that we are otherwise required to provide in "writing". For example, we may send you notice via postings at the MSP Website or via email to any email address that you provide to us during registration for membership at the MSP Website.  If you do not wish to deal with us electronically, you should not access or use the MSP Website, register for membership at the MSP Website, offer to sell or sell any Teaching Content on the MSP Website, or access or use any other MSP Products and Services. If applicable law now or later requires us to communicate with you non-electronically, we reserve the right to charge a fee for doing so. Notice will be deemed given 24 hours after the email is sent, unless (for email) we are notified that the email address is invalid.

     D.   Print a Copy for Your Records.  You agree to print or make an electronic copy of this Agreement (and any amendment from time to time) and retain it in your records. You also agree to make a copy of any other information that we deliver to you in writing.

     E.   Modification/Termination.  MSP may modify the provisions of this Agreement at any time in its absolute discretion. When MSP changes the terms of this Agreement, MSP will endeavor to notify you by email or online postings on the MSP Website. The changes will also appear in this Agreement. Please review this Agreement periodically for changes.  If you do not agree to be bound by the modified terms of this Agreement, you should not use or access the MSP Website again and you should not continue your membership with MSP.  By accessing or using the MSP Website, registering for membership at the MSP Website, offering to sell or selling any Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you are agreeing to be bound by the terms of this Agreement as modified at any time or from time to time by MSP.

MSP may terminate or suspend your MSP membership and/or your access to or use of the MSP Website (or any part thereof), the Teaching Content or any other MSP Products and Services, with or without notice, for any conduct that MSP, in its sole discretion, believes is in violation of this Agreement, any applicable law, or for any act which is harmful to the interests of another user, service provider, or MSP, or for any other reason whatsoever. Applicable sections of this Agreement will survive any termination or expiration of this Agreement.

MSP reserves the right, in its sole discretion, to modify, suspend, or terminate the MSP Website and/or any other MSP Products and Services, and/or any portion thereof, and/or your account, password, membership, access to or use of the MSP Website, the Teaching Content, and/or any other MSP Products and Services, or any portion of any of the foregoing, at any time for any reason with or without notice to you.

Termination of your MSP membership and/or access and use rights removes your authorization to use the MSP Website and any other MSP Products and Services. In the event of termination, you will still be bound by your obligations under this Agreement, including the warranties made by you, and by the disclaimers and limitations of liability. Additionally, MSP and any company commonly owned by and with MSP and their agents shall not be liable to you or any third party for any termination of your membership or use of or access to the MSP Website or any other MSP Products and Services.

     F.   Assignment. You agree not to assign your rights under this Agreement without the written consent of an authorized representative of MSP in a non-electronic record, and any assignment without MSP’s consent will be voidable at MSP’s option. This Agreement will inure to the benefit of and bind the parties' respective successors and permitted assigns.  MSP may assign this Agreement and/or its rights hereunder to any successor or purchaser or MSP or substantially all of its assets.

     G. Entire Agreement; Severability; No Waiver.  This Agreement (including all documents incorporated by reference) is the entire agreement between the parties in regard to its subject matter and supersedes all prior and contemporaneous communications between the parties. No term of this Agreement may be waived by MSP except in a signed, non-electronic writing signed by an authorized representative of MSP.

     H.  Severability; No Partnership or Joint Venture.  If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that its remaining provisions will remain in full force and effect, provided that the allocation of risks described herein is given effect to the fullest extent possible. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that no joint venture, partnership, employment or agency relationship exists between you and MSP and/or any company commonly owned by or with MSP as a result of this Agreement or your access to or use of the MSP Website, the Teaching Content or any other MSP Products and Services.

     I.   Headings.  Captions and headings contained in this Agreement have been included for convenience only and in no way define, limit, or extent the scope of this Agreement or the intent of any provisions hereof.

End of Terms of Service and Use (Sellers)

 


Updated: July 2,  2013

 

TERMS OF SERVICE AND USE (BUYERS)

Updated: July 2, 2013

PLEASE READ THESE TERMS OF SERVICE AND USE BEFORE ACCESSING OR USING THE MSP WEBSITE AND/OR ANY PRODUCTS OR SERVICES OFFERED ON THE MSP WEBSITE.

1.    Description of MSP Products and Services

The MindSpark Partners website (www.MindSparkPartners.com) (the “MSP Website”) is owned and operated by MindSpark Partners, LLC (“MSP”). The MSP Website exists to provide teachers with an online marketplace to buy and sell educational and other related products and materials (“Teaching Content”) from each other and from MSP and other providers. While the Teaching Content available for sale on the MSP Website is expected to adhere to MSP’s “Higher Level Thinking Criteria” (see here), the Teaching Content offered and sold by individual teachers (herein “Teacher-Sellers”) is  solely  the responsibility of such Teacher-Sellers and all purchase and sales transactions involving such Teaching Content is the sole responsibility of such Teacher-Sellers and MSP does not have any responsibility for any Teaching Content or any other products or services offered for sale or sold by or on behalf of any Teacher-Sellers.     

MSP provides the MSP Website, the Teaching Content, and all other information, content, applications, plans, products and services available on the MSP Website, including the online marketplace, MSP buyer accounts, online forums, feedback loops, bulletin boards, webinars, wikis and chats (collectively the “MSP Products and Services”), pursuant to and subject to your compliance with this Terms of Service and Use Agreement, including any documents incorporated herein by reference (together this “Agreement”). Please read this Agreement carefully before accessing or using the MSP Website, offering to buy or buying Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services. By accessing and using the MSP Website, offering to buy or buying Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you accept to be bound by the terms and conditions of this Agreement without limitation, qualification or change by you and you agree that this Agreement constitutes “a writing signed by you” under any applicable law or regulation.  If at any time you do not accept all the terms and conditions of this Agreement, which may be modified by MSP at any time in its discretion and without direct notice (unless prior notice is required by law), you must immediately discontinue use of the MSP Website and the MSP Products and Services.             

In this Agreement, “we”, “us” or “our” refer to MSP, and “you” or “your” refer to each visitor, user, or customer of the MSP Website and/or the MSP Products and Services, including each buyer of Teaching Content (herein “Teacher-Buyer”).          

2.   You Must Be At Least 18 Years of Age

The MSP Website and the MSP Products and Services are not intended for minors. You must be at least 18 years of age in order to access or use the MSP Website, open an MSP buyer account, offer to buy or buy Teaching Content on the MSP Website, or access or use any other MSP Products and Services.  

3.   Sales of Teaching Content in Digital Format Only

All Teaching Content offered for sale and/or sold on the MSP Website must be in digital format for electronic delivery to Teacher-Buyers via download on the MSP Website.  No physical (i.e., non-digital) sales of Teaching Content can be made on the MSP Website or by utilizing, directly or indirectly, any other MSP Products and Services and you are not authorized to use the MSP Website or any other MSP Products and Services for such activities and transactions and MSP expressly disclaims any representations or warranties, whether express or implied, with respect to or in connection with any such activities and transactions.          

4.   Pricing of Teaching Content

Pricing for Teaching Content available on the MSP Website will be initially established by MSP and may thereafter vary depending upon demand and product reviews. Teacher-Sellers agree to offer for sale and sell their Teaching Content only at the prices listed on the MSP Website. Teacher-Sellers may not charge shipping, handling, processing or other similar fees in regard to any Teaching Content sold on the MSP Website.  .  

5.   Payments for Teaching Content and Other MSP Products and Services 

By opening an MSP buyer account and/or by offering to buy or buying Teaching Content or MSP Products and Services on the MSP Website, you agree: (a) to pay in full (including purchase price, sales taxes, shipping charges, fees, and any other assessed amounts) for all Teaching Content and MSP Products and Services purchased on the MSP Website; (b) to make all such payments directly to MSP at the time of each purchase transaction; (c) to provide MSP with valid credit card and/or PayPal® account details and to maintain at least one valid credit card or PayPal® account on file in your MSP buyer account (you can change your credit card or PayPal® account details by logging into your MSP buyer account, although there may a delay in your ability to make purchases on the MSP Website until any new card or PayPal® account information can be verified); (d) that MSP may charge any credit card and/or PayPal® account you identify in your MSP buyer account for the purchase price, sales taxes and other amounts (including shipping fees, late fees, etc.) associated with your purchase of Teaching Content and MSP Products and Services on the MSP Website; (e) to abide by any other terms and conditions associated with your purchase of Teaching Content or MSP Products and Services on the MSP Website, including the terms of this Agreement, as amended or modified from time to time.          

Teacher-Sellers are solely responsible for ensuring that Teaching Content available on the MSP Website has been uploaded to the MSP Website, that all such Teaching Content corresponds to the offer description on the MSP Website, and that such Teaching Content is available for download by Teacher-Buyers in accordance with the terms of sale and this Agreement and MSP shall have no liability, including to Teacher-Sellers or any Teacher-Buyer, if Teaching Content is not available for download or is otherwise than as offered by Teacher-Sellers.             

6.   Representations and Warranties by Teacher-Buyers   

By opening an MSP buyer-account and/or by offering to buy or buying any Teaching Content or MSP Products and Services on the MSP Website, you hereby state, represent and warrant to MSP and to Teacher-Sellers, as appropriate, that: (a) all information provided or disclosed by you to MSP in your MSP buyer account is true, accurate, current and complete; (b) you will maintain and promptly update your MSP buyer account information to ensure that it remains true, current, accurate and complete at all times; (c) all information provided, listed or disclosed by you or in your behalf on the MSP Website is and will remain true, accurate, current and complete and is not and will not be misleading or otherwise deceptive; and (d) you otherwise have the full right, ability and legal authority to access and use the MSP Website, open an MSP buyer account, offer to buy and buy Teaching Content, and to access, use and/or purchase other MSP Products and Services on the MSP Website.     

7.   Additional Agreements and Obligations of Teacher-Buyers.

As a Teacher-Buyer, you hereby agree: (a) without the express prior written consent of MSP and/or a Teacher-Seller, as the case may be, not to use or disclose, and to ensure that your affiliates, agents, employees and contractors do not use or disclose, to any third party, any order or other data or information regarding Teacher-Sellers or any other visitors or users of the MSP Website which is obtained through the MSP Website or any other MSP Products and Services and/or is disclosed or provided to you by MSP in connection with any purchase of Teaching Content or MSP Products and Services on the MSP Website except as necessary to complete a sale of Teaching Content or MSP Products and Services on the MSP Website and/or to otherwise fulfill your obligations under this Agreement (including, without limitation, for purposes of solicitation, advertising, direct marketing, harassment, invasion of privacy or any other objectionable conduct), and MSP shall have no responsibility or liability in connection with the failure by a Teacher-Seller to abide by the foregoing; (b) to pay over to the appropriate authorities any and all taxes arising from or in connection with any transactions you conduct on the MSP Website; and (c) to assume full responsibility for all purchase transactions on the MSP Website through your MSP buyer account.    

As a Teacher-Buyer, you also hereby acknowledge and agree that: (a) MSP does not screen or otherwise independently confirm or verify the identity or legal or other attributes or authority of any Teacher-Seller or other visitor or user of the MSP Website or any user of other MSP Products and Services; (b) all interactions (if any) you have with a Teacher-Seller or any other visitor or user of the MSP Website or any user of other MSP Products and Services, including offers to sell, sales, offers to purchase, purchases, payments for and/or deliveries of Teaching Content and/or any other goods or services whatsoever, on the MSP Website or otherwise, and any other terms, conditions, warranties or representations associated with, related to or offered in connection with such activities and transactions, are solely and exclusively between you and such Teacher-Seller, visitor or user; (c) MSP is not a party to any purchase transaction made on the MSP Website in respect of Teaching Content purchased by Teacher-Buyers and MSP is not involved in any actual transaction between Teacher-Sellers and Teacher-Buyers; (d) MSP is not your agent or representative or an agent or representative of any Teacher-Seller (or any other visitor or user) for any purpose whatsoever; and (e) MSP is not responsible for any claims, liabilities, losses or damages arising from or related in any way to any transactions or other activities between you and any Teacher-Seller or other visitor or user of the MSP Website.

MSP does not transfer legal title or ownership of your Teaching Content or any other goods from Teacher-Seller to Teacher-Buyer.  Revised Statutes of Missouri §400.2-401(2) and Uniform Commercial Code  §2-401(2) apply to the transfer of ownership between Teacher-Sellers and Teacher-Buyers, and provide that, unless otherwise expressly agreed between a seller and a buyer, legal title or ownership of an item transfers to buyer upon physical delivery of the item to buyer from seller.   

8.   Teaching Content Licenses

Because the Teaching Content offered for sale and/or sold by a Teacher-Seller on the MSP Website is purported to be original to him or her, such Teacher-Seller purports to have all ownership rights and title to such Teaching Content and thus controls the licenses granted to Teacher-Buyers in respect of such Teacher-Seller’s Teaching Content. It is the responsibility of each Teacher-Seller to notify Teacher-Buyers of the license terms under which his or her Teaching Content is offered on the MSP Website.  Absent any contrary terms expressly set forth in any offer of Teaching Content, Teacher-Buyers shall have such rights to reproduce, prepare derivative works from, distribute, display and otherwise use Teaching Content as permitted under the Copyright Act of 1976 (17 U.S.C.  §§ 101 et seq.) , including, but not limited to, those rights under §110(1) (classroom teaching), §110(2) (distance learning) or §107 (fair use) of such Act.  

 

9.   User Code of Conduct

As a condition of accessing or using the MSP Website, opening an MSP buyer account, offering to buy or buying Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you agree to all of the following:

  • You must have an MSP buyer account in order to offer to buy or to buy Teaching Content on the MSP Website.
  • You are required to select an identification ("UserName") and password in conjunction with buyer account registration. You are responsible for maintaining the confidentiality of your UserName and password and you are encouraged not to disclose that information to anyone who does not need to know it.
  • You are responsible for all activity that occurs under your UserName.
  • You are solely responsible for your conduct and any content, materials or information that you submit, post, and display on the MSP Website, or that you allow others to submit, post and/or display on the MSP Website under your UserName.
  • You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any system, security technology or other software that is part of the MSP Website or used to administer the rules contained in this Agreement.

By accessing or using the MSP Website, opening an MSP buyer account, offering to buy or buying Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you also agree that you will not:

  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website any unsolicited advertisements, promotional materials, junk email, bulk email (also known as “spam”), chain letters, surveys or contests, or solicit participation in any pyramid schemes. 
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website  any unlawful (according to local, state, federal, or international law or regulation) postings on or through the MSP Website, or any postings which advocate illegal activity. 
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website, or provide links to, any postings containing material that could be considered harmful, obscene, pornographic, indecent, lewd, violent, abusive, profane, insulting, threatening, harassing, hateful or otherwise objectionable. 
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website, or provide links to, any postings containing material that harasses, victimizes, degrades, or intimidates an individual or group of individuals on the basis of religion, race, ethnicity, sexual orientation, gender, age, or disability. 
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website, or provide links to, any postings containing defamatory, false or libelous material. 
  • Use the MSP Website or any other MSP Service to “stalk” or otherwise harass any other person. 
  • Upload, post, email, transmit, deliver or otherwise make available on or through the MSP Website any posting that infringes or violates any intellectual property or other right of any entity or person, including, without limitation, copyrights, patents, trademarks, laws governing trade secrets, rights to privacy, or publicity. 
  • Upload, post, email, transmit, deliver or otherwise make available for sale or sell on or through the MSP Website any posting to that you do not have a right to make available under law or contractual or fiduciary relationships. 
  • Impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity, or adopt a false identity if the purpose of doing so is to mislead, deceive, or defraud another. 
  • Manipulate identifiers, including by forging headers or employing misleading email addresses or IP addresses, in order to disguise the origin of any posting that you deliver. 
  • Deliver any posting containing personal information, such as phone numbers, social security numbers, account numbers, addresses or employer references. 
  • Upload, post, email, transmit, deliver or otherwise make available for sale or sell on or through the MSP Website any stolen goods or any products or services which may not be legally offered for sale and/or sold.
  • Upload, post, email, transmit, deliver or otherwise make available for sale or sell on or through the MSP Website any materials that infringe a patent, trademark, trade secret, copyright or other intellectual property right of another person or entity or that violate any rights of privacy or publicity, or that defame or libel any person or entity, or offer content that you do not have a right to make available under any law or under contractual or fiduciary relationships (including without limitation any goods purchased or obtained by you without right of resale such as promotional materials or school market-restricted materials.
  • Manipulate the price of any Teaching Content or otherwise interfere with any Teaching Content.
  • Use the MSP Website or any other MSP Products and Services in any manner which could damage, disable, overburden, or impair or otherwise interfere with the use of the MSP Website, or cause damage, disruption or limit the functioning of any software, hardware, or telecommunications equipment. 
  • Attempt to gain unauthorized access to the MSP Website, any related website, other accounts, computer system, or networks connected to the MSP Website, through hacking, password mining, or any other means. 
  • Obtain or attempt to obtain any materials or information through any means not intentionally made available through the MSP Website, including harvesting or otherwise collecting information about others such as email addresses. 
  • Use Web-accelerated browsers or products (including but not limited to NetJet, NetSonic, MSIECrawler and Teleport-Pro), or other applications that are capable of copying large portions of content from the MSP Website.  MSP may detect the use of these systems through live log file analysis and will ban any future use by offenders.
  • Use robots, crawlers, spiders, data mining tools or other automated means to download data from the MSP Website, excepting only internet search engines (e.g. Google or Yahoo!) and non-commercial public archives that comply with our robot.txt file or are “well-behaved” web services/RSS/Atom clients, as we determine to be appropriate from time to time in our discretion.
  • Use any device, software or routine or the like to interfere or attempt to interfere with any MSP Website functionality.
  • Take any action that imposes an unreasonable or disproportionately large load on the MSP Website infrastructure, including by engaging in “flooding attacks.”
  • Use any email addresses appearing on the MSP Website for purposes not relating specifically to the MSP Website.
  • Access the MSP Website by any means other than through the interface that is provided by MSP, or attempt or access any area of the MSP Website to which your access is not authorized.
  • Reverse engineer, reverse assemble or otherwise attempt to discover any source code relating the MSP Website, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

10. User-Submitted Content  

MSP will use reasonable efforts to restrict conduct and/or eliminate content, information or materials from the MSP Website which violate the policies set forth in this Agreement. However, you recognize and agree that MSP does not pre-screen content (including Teaching Content) except for compliance with MSP’s “Higher Level Thinking Criteria”, information or materials available through the MSP Website or other MSP Products and Services, and MSP may not be able otherwise to prevent, restrict and/or immediately eliminate any and all offending conduct and/or content, information or materials from the MSP Website.  Consequently, you further acknowledge and agree that (i) MSP is not and cannot be responsible for any content (including any Teaching Content), information or materials made available through the MSP Website or any other MSP Products and Services by any third party, (ii) you may be exposed to such materials, information or content, and (iii) you bear all risks associated with the exposure to and/or use of any such materials, information or content, including without limitation any reliance on the accuracy, completeness, or usefulness of such materials, information or content. 

In all events, MSP shall have the right (but not the obligation) in its sole discretion to refuse, move or remove any content (including Teaching Content), information or materials that is made available through the MSP Website.  Without limiting the generality of the foregoing, MSP and its designees shall have the right to remove any content that violates this Agreement or is otherwise objectionable, as we determine in our discretion. You specifically agree that MSP is not responsible for any content sent using and/or included in the MSP Website or in any other MSP Products and Services by any third party.

11.   User Communication Services

The MSP Website may contain bulletin board services, news groups, webinars, forums, blogs and/or other message or communication facilities ("Communication Services") designed to enable you to communicate with others. You agree to use the Communication Services only to submit or post messages and material that are proper and, when applicable, related to the particular Communication Service. You are also prohibited from submitting to, posting or transmitting through the MSP Website, via any Communications Services or otherwise, any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. Content that consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" is prohibited.  You may not use a false or unauthorized email address or postal address, impersonate any person or entity, or otherwise mislead as to the origin of your posted content. 

Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties are those of the respective authors or distributors and not of MSP, nor any of its officers, directors, employees, or agents. You acknowledge that MSP does not pre-screen all content, but that MSP and its designees shall have the right (but not the obligation) in their sole discretion to refuse, move or remove any content that is made available via the Communication Services. Without limiting the foregoing, MSP and its designees shall have the right to remove any content that violates this Agreement or is otherwise objectionable, as we determine in our discretion. You specifically agree that MSP is not responsible for any content sent using and/or included in the Communications Services by any third party.

12.  Links to Third Party Sites 

The MSP Website may contain links to websites, applications or other services operated by third-parties, including, without limitation, the sites of our sponsors or others (the “Linked Sites”).  MSP does not endorse the content on any Linked Sites and is not responsible for the content of any Linked Sites or any websites framed within the MSP Website, or third-party advertisements on the MSP Website, and we do not make any representations regarding their content or accuracy. Any transaction that you conduct at a third-party website will be between you and the party providing that website. This means that MSP is not your agent and is not a party to any transaction at a Linked Site. If you choose to access any third-party site (including any Linked Site), you do so at your own risk, and your use of that site is subject to its own terms of use and privacy policy, which you should review. The presence of a link to a third-party site (including any Linked Site) does not constitute or imply MSP’s endorsement, sponsorship, or recommendation of the third party or of the content, products, or services contained on, or available through, the site.

13.   Software and Downloads Available Through the MSP Website

Any software that is made available to access, use, view and/or download in connection with the MSP Website (“Software”), including applications, podcasts, audio streaming, or video streaming, is owned or controlled by MSP, one or more companies commonly owned by or with MSP, and/or their licensors and suppliers, and is protected by copyright laws and international treaty provisions. Your use of the Software is limited to private, non-commercial use and is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software. MSP accepts no responsibility or liability in connection with any Software owned or controlled by third parties

14.   Copyright Policy

We respect the intellectual property rights of others, and we ask that you do the same. It is our policy to disable access to or remove material that we believe in good faith to be infringing on a copyrighted work. We will also disable and/or terminate the accounts of Teacher-Buyers who we believe are infringing copyrighted works. Our Copyright Policy has been developed in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable laws, and is available at www.mindsparkpartners.com/Copyright-Policy. By accepting these Terms of Service, you agree to be bound by our Copyright Policy, which is by this reference expressly incorporated into this Agreement.

15.   Privacy Policy

MSP has developed a Privacy Policy in order to inform you of its practices with respect to the collection, use, disclosure and protection of personal information. You can find the Privacy Policy, which is incorporated into this Agreement, by clicking here, and by accessing or using the MSP Website, opening and MSP buyer account, offering to buy or buying any Teaching Content on the MSP Website, and/or accessing or using any other MSP Products and Services, you agree to the terms of the Privacy Policy.

16.   LIMITATION OF DAMAGES AND LIABILITY  

IN NO EVENT SHALL MSP OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, MEMBERS, SHAREHOLDERS OR OTHER AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO (i) loss of goodwill, business, revenue, profits, use, data, business opportunity, or other economic advantage; (ii) your inability to use, unauthorized use of, performance or non-performance of the MSP Website, the Teaching Content, or any other MSP Products and Services; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained on the MSP Website, in the Teaching Content, or in any other MSP Service or any information, software, products, services, and related graphics obtained through the MSP Website, in the Teaching Content, or in any other MSP Products and Services; (vi) any transactions entered into through the MSP Website, including any transactions to buy any Teaching Content; (vii) any property damage including damage to your device or computer system caused by viruses or other harmful components, during or on account of access to or use of the MSP Website or any site to which it provides hyperlinks; or (viii) damages otherwise arising out of the use of the MSP Website, the Teaching Content, and/or any other MSP Products and Services. 

THESE LIMITATIONS SHALL APPLY REGARDLESS OF HOW ANY ALLEGED DAMAGES ARISE, WHETHER IN AN ACTION IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORTIOUS ACTION, OR ARISING OUT OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE MSP WEBSITE OR MATERIALS AVAILABLE FROM OR THROUGH THE MSP WEBSITE, INCLUDING TEACHING CONTENT, EVEN IF MSP OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP OR THEIR AGENTS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF THIS LIMITATION OF LIABILITY, OR THE EXCLUSION OF REPRESENTATIONS AND WARRANTIES BELOW, IS HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE MAXIMUM LIABILITY OF MSP AND/OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND/OR ANY OF THEIR AGENTS FOR ANY TYPE OF DAMAGES SHALL BE LIMITED TO U.S. $100.00.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 

YOU HEREBY ACKNOWLEDGE THAT YOU UNDERSTAND THAT BY ACCESSING AND USING THE MSP WEBSITE, TEACHING CONTENT OR ANY OTHER MSP PRODUCTS AND SERVICES AND AGREEING TO THE TERMS OF THIS AGREEMENT, YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. IF YOU ARE A CALIFORNIA RESIDENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVE, §1542 OF THE CIVIL CODE OF CALIFORNIA, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." FURTHERMORE, IF YOU ARE A RESIDENT OF ANOTHER STATE OR JURISDICTION, YOU AGREE TO WAIVE IN ADVANCE ANY SIMILAR LAWS OF SUCH OTHER STATE OR JURISDICTION.

17.   DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR USE OF, AND RELIANCE ON, ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH THE MSP WEBSITE, THE TEACHING CONTENT, AND/OR ANY OTHER MSP PRODUCTS AND SERVICES IS AT YOUR OWN RISK.  THE MSP WEBSITE AND ALL CONTENT (INCLUDING TEACHING CONTENT), SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHICS, AND OTHER MATERIALS CONTAINED WITHIN OR AVAILABLE THROUGH OR FOUND AT THE MSP WEBSITE AND/OR IN ANY OTHER MSP PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS", “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND BY MSP OR ANY COMPANY COMMONLY OWNED BY OR WITH MSP OR THEIR AGENTS.  MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE MSP WEBSITE OR THE INFORMATION, CONTENT (INCLUDING TEACHING CONTENT) OR MATERIALS INCLUDED ON THE MSP WEBSITE. TO THE FULLEST EXTENT PERMITTED BY LAW, MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, INFORMATIONAL CONTENT, TITLE, OR NON-INFRINGEMENT OF THE RIGHTS OF THIRD-PARTIES. MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS MAKE NO REPRESENTATION OR WARRANTY THAT THE MSP WEBSITE WILL BE AVAILABLE OR ACCESSIBLE AT ANY PARTICULAR TIME OR WILL OPERATE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MSP WEBSITE AND/OR ITS SERVER WILL BE FREE OF VIRSUES AND/OR OTHER HARMFUL COMPONENTS.  MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY MATERIAL OF ANY KIND CONTAINED WITHIN OR AVAILABLE THROUGH THE MSP WEBSITE, INCLUDING THE TEACHING CONTENT, FOR ANY PURPOSE, INCLUDING SOFTWARE, PRODUCTS, SERVICES, INFORMATION, TEXT AND RELATED GRAPHIC CONTENT.  MSP AND ANY COMPANY COMMONLY OWNED BY OR WITH MSP AND THEIR AGENTS ARE NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS IN TRANSMISSIONS OR RECEIPTS OF ANY INTERACTIVE SERVICES, OR ANY COMPUTER VIRUS OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE.

18.   Indemnification.  

You agree to indemnify, defend and hold harmless MSP and any company commonly owned by or with MSP and their respective officers, directors, managers, employees, members, shareholders, agents, and licensors from and against any and all claims, causes of action, demands, liabilities, damages, losses, expenses (including reasonable attorneys' fees and costs) and assessments (including tax assessments) arising out of or in any way related to: (a) your access to or use of the MSP Website, the Teaching Content, or any other MSP Products and Services; (b) your access to or use of an MSP buyer account on the MSP Website; (c) any product, content (including Teaching Content), information or materials available on or through the MSP Website; (d) any dispute between you and any Teacher-Seller or any other person in regard to the Teaching Content or any other matter whatsoever; (e) your breach or purported or threatened breach of any provision of this Agreement or any warranty you provide herein, or (f) your violation or purported or threatened violation of any applicable laws, rules, regulations or rights. You agree to cooperate fully with MSP and any company commonly owned by or with MSP and their agents in asserting any available defenses in connection with a claim subject to indemnification by you under this Agreement.  

19.   Third-Party Merchants; Advertisements, Sponsorships, Co-Promotions and Other Partnerships

The MSP Website may enable you to order and receive products, information and services from businesses that are not owned or operated by MSP. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the merchandise, services or information, opinion or advice ordered or received from such businesses are solely between you and such businesses. MSP does not endorse, warrant, or guarantee such products, information, or services, and is not liable for the accuracy, completeness, or usefulness of such information or the quality of availability of such products or services. MSP will not be a party to or in any way responsible for monitoring any transaction between you and third-party providers of such products, services, or information, or for ensuring the confidentiality of your credit card information. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility and are not part of the fee, if any, charged for any MSPs and Services.  

MSP may display advertisements for the goods and services of a third party on the MSP Website, including in connection with co-promotions, sponsorships and other similar partnership arrangements. MSP does not endorse or represent and is not responsible for the safety, quality, accuracy, reliability, integrity or legality of any such goods or services advertised, promoted or displayed on the MSP Website or in any MSP Products and Services. 

20.   Termination

MSP reserves the right to suspend or terminate, or take any other action or remedy that we deem reasonable, appropriate or necessary, in our sole discretion, with respect to your MSP buyer account immediately, without prior notice or liability, for any reason. If we terminate your MSP buyer account, your right to access or use the MSP Website or any other MSP Products and Services will immediately cease. You may terminate your MSP buyer account at any time and for any reason, and we will make available through the MSP Website reasonable means for you to do so. All provisions of this Agreement will survive termination, including, without limitation, ownership provisions, licenses, warranty disclaimers, indemnity, and limitations of liability.

21.  International Use/U.S. Export Controls

You recognize that accessing materials on the MSP Website by certain persons in certain countries may not be lawful, and MSP makes no representation that the Teaching Content or other materials available on or at the MSP Website are appropriate or available for use in locations outside the United States. If you choose to access the MSP Website from outside the United States, you do so at your own risk and initiative, and are responsible for compliance with any applicable local laws.

The United States controls the export of any software downloadable from the MSP Website. No software or any other materials associated with the MSP Website may be downloaded or otherwise exported or re-exported to countries or persons prohibited under export control laws, including but not limited to countries against which the United States has embargoed goods, or to anyone on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Deny Orders. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any such materials. By using and/or downloading any such materials from the MSP Website, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country to which such import, export, or re-export is prohibited or are not a person or entity to which such export is prohibited.

22.   Your Additional Representations and Warranties

You represent and warrant to MSP that: (a) you possess the legal right and ability to enter into this Agreement; (b) all information submitted by you to MSP, including on or through the MSP Website, is true and accurate; and (c) you are at least 18 years old.

23.   Miscellaneous Provisions

     A.   MSP Property and Rights.  The MSP Website and all content, text, photographs, images, illustrations, graphics, video material, audio material, software, MSP logos, titles, characters, names, graphics and button icons on the MSP Website (excluding the Teaching Content) (collectively the “MSP Intellectual Property”), are protected by copyright, trademark and other laws of the United States, as well as international conventions and the laws of other countries. The MSP Intellectual Property is owned or controlled by MSP or by other parties that have provided rights thereto to MSP. 

You may not, and agree that you will not, reproduce, download, license, publish, enter into a database, display, modify, create derivative works from, transmit, post, distribute or perform publicly by any means, method, or process now known or later developed, de-compile, reverse engineer, disassemble, use on another computer-related environment, transfer or sell any MSP Intellectual Property, in whole or in part, without the express written permission of MSP or as otherwise permitted in this Agreement; provided, however, that you may download one copy of information on the MSP Website on a single computer for your own personal, non-commercial use provided you are in compliance with this Agreement.  

Other trademarks, service marks, product names and company names or logos appearing on the MSP Website or any other MSP Products and Services that are not owned by MSP may not be used without express permission from their owners. Additionally, unless otherwise restricted or prohibited by MSP or in this Agreement, websites may link, by hyperlink or otherwise, to the MSP Website homepage and any age beyond the homepage of the MSP Website, and/or frame the MSP Website, or any web page or material herein, and may include a link to any aspect of the MSP Website in an email for commercial purposes. 

      B.  Governing Law; Dispute Resolution.  This Agreement is governed by and shall be construed in accordance with the laws of the State of Missouri USA, without regard to principles of conflict of laws, and is deemed to be made at MSP’s offices in St. Louis County, Missouri USA. To the extent you have in any manner violated or threatened to violate the intellectual property rights of MSP and/or any company commonly owned by or with MSP, then MSP and/or such commonly owned company may seek injunctive or other appropriate relief in any state or federal court in the State of Missouri USA, and you consent to exclusive jurisdiction and venue in such courts. Any other disputes will be resolved as follows:

          (1)   If a dispute arises under this Agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in St. Louis County, Missouri USA. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.

          (2)   If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration in St. Louis County, Missouri USA, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so. 

By using the MSP Website, you expressly agree that your rights and obligations shall be governed by and interpreted in accordance with the laws of the State of Missouri USA, excluding its choice of law rules.  Any legal action or proceeding relating to your access to or use of or any other matter relating to this Agreement or your access to or use of the MSP Website, the Teaching Content, or any other MSP Products and Services shall be instituted in the Circuit Courts of St. Louis County, Missouri USA or the United States District Courts for the Eastern District of Missouri USA.  We and you agree exclusively and irrevocably to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal proceeding or action.  These Terms of Use expressly exclude and disclaim the U.N. Convention on Contracts for the International Sale of Goods, which shall not apply to any transaction conducted through or otherwise involving the MSP Website. 

     C.   Consent to Electronic Notices and Other Communication. You agree that all of your transactions with us relating to this Agreement, the MSP Website, the Teaching Content or any other MSP Products and Services may, at our option, be conducted electronically, including any that we are otherwise required to provide in "writing". For example, we may send you notice via postings at the MSP Website or via email to any email address that you provide to us in your MSP buyer account.  If you do not wish to deal with us electronically, you should not access or use the MSP Website, open an MSP buyer account, offer to buy or buy any Teaching Content on the MSP Website, or access or use any other MSP Products and Services. If applicable law now or later requires us to communicate with you non-electronically, we reserve the right to charge a fee for doing so. Notice will be deemed given 24 hours after the email is sent, unless (for email) we are notified that the email address is invalid. 

     D.   Print a Copy for Your Records.  You agree to print or make an electronic copy of this Agreement (and any amendment from time to time) and retain it in your records. You also agree to make a copy of any other information that we deliver to you in writing.

     E.   Modification/Termination.  MSP may modify the provisions of this Agreement at any time in its absolute discretion. When MSP changes the terms of this Agreement, MSP will endeavor to notify you by email or online postings on the MSP Website. The changes will also appear in this Agreement. Please review this Agreement periodically for changes.  If you do not agree to be bound by the modified terms of this Agreement, you should not use or access the MSP Website again and you should not continue your MSP buyer account.  By accessing or using the MSP Website, opening an MSP buyer account, offering to buy or buying Teaching Content on the MSP Website, or accessing or using any other MSP Products and Services, you are agreeing to be bound by the terms of this Agreement as modified at any time or from time to time by MSP.

MSP may terminate or suspend your MSP buyer account and/or your access to or use of the MSP Website (or any part thereof), the Teaching Content or any other MSP Products and Services, with or without notice, for any conduct that MSP, in its sole discretion, believes is in violation of this Agreement, any applicable law, or for any act which is harmful to the interests of another user, service provider, or MSP, or for any other reason whatsoever. Applicable sections of this Agreement will survive any termination or expiration of this Agreement.

MSP reserves the right, in its sole discretion, to modify, suspend, or terminate the MSP Website and/or any other MSP Products and Services, and/or any portion thereof, and/or your account, password, access to or use of the MSP Website, the Teaching Content, and/or any other MSP Products and Services, or any portion of any of the foregoing, at any time for any reason with or without notice to you.

Termination of your MSP buyer account and/or access and use rights removes your authorization to use the MSP Website and any other MSP Products and Services. In the event of termination, you will still be bound by your obligations under this Agreement, including the warranties made by you, and by the disclaimers and limitations of liability. Additionally, MSP and any company commonly owned by and with MSP and their agents shall not be liable to you or any third party for any termination of your MSP buyer account or use of or access to the MSP Website or any other MSP Products and Services. 

     F.   Assignment. You agree not to assign your rights under this Agreement without the written consent of an authorized representative of MSP in a non-electronic record, and any assignment without MSP’s consent will be voidable at MSP’s option. This Agreement will inure to the benefit of and bind the parties' respective successors and permitted assigns.  MSP may assign this Agreement and/or its rights hereunder to any successor or purchaser or MSP or substantially all of its assets.

     G. Entire Agreement; Severability; No Waiver.  This Agreement (including all documents incorporated by reference) is the entire agreement between the parties in regard to its subject matter and supersedes all prior and contemporaneous communications between the parties. No term of this Agreement may be waived by MSP except in a signed, non-electronic writing signed by an authorized representative of MSP.

     H.  Severability; No Partnership or Joint Venture.  If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that its remaining provisions will remain in full force and effect, provided that the allocation of risks described herein is given effect to the fullest extent possible. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that no joint venture, partnership, employment or agency relationship exists between you and MSP and/or any company commonly owned by or with MSP as a result of this Agreement or your access to or use of the MSP Website, the Teaching Content or any other MSP Products and Services.

     I.   Headings.  Captions and headings contained in this Agreement have been included for convenience only and in no way define, limit, or extent the scope of this Agreement or the intent of any provisions hereof.

End of Terms of Service and Use (Buyers)

Revised July 2, 2013