Terms and Conditions of Service
If you are a Customer and you or your organization are bound by a customer agreement with MPowered (“Customer Terms”), then these Terms will apply, if at all, only to use of the Site or any MPowered Services to the extent such use is not already governed by such Customer Terms.
BY ACCESSING, USING, DOWNLOADING, OR UPLOADING ANY INFORMATION FROM OR TO THE SITE, OR USING THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE AND SERVICES IMMEDIATELY.
1. Acceptance of Terms.
Please check these Terms periodically for changes. If you do not agree to the Terms, please do not use the Site. By using the Site, you acknowledge that you have read, understood and agree to these Terms. Your continued use of this Site following the posting of any changes to the Terms constitutes acceptance of those changes.
2. Credentials & Passwords.
You agree that at all times you shall keep confidential, maintain and control all user names and passwords used to limit your, and your access to the Site, and that you are exclusively responsible for all activities that occur in connection with such user names and passwords. You agree to immediately notify MPowered of any disclosure to, or use of, any such usernames or passwords by any other individual. MPowered will not be liable for any loss or damage of any kind, under any legal theory, caused by your failure to comply with the foregoing obligations.
4. Eligibility; Use of the Site.
4.1. Eligibility to Use the Site. By using the Site, you represent and warrant that you are 13 years of age or older and competent to agree to these Terms, or you are a Customer or Authorized User authorized to set up accounts for students under the age of 13.
4.2. Using the Site on Behalf of a School or Organization. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are competent and authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). Additionally, if you sign up student users on behalf of your School or Organization, you represent and warrant that you have obtained any and all legally required consents and authorizations from a student’s parent/guardian prior to enrolling such student as a Site user. You also understand and agree that your limited access to user data through your use of the site, does not permit you to disclose, share or otherwise employ such data for any purpose other than the administration of the educational content on this site. You acknowledge that MpoweredParent will comply with any request to remove user data for any customer or student, upon verification, whether or not their account was created independently or by you.
4.3. Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your non-commercial personal use, or your internal business purposes (where applicable) and only as expressly permitted in these Terms and any applicable Customer Terms. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms or Customer Terms. If you are or become a direct competitor of MPowered, you may not access or use the MPowered Services without MPowered’s explicit, advance, written consent, and then only for the purposes authorized in writing. Without limiting the foregoing, you may not: (1) interfere with others’ use of the Site; (2) impair the Site’s operation or interfere with or disrupt the servers or networks on which it operates; (3) interfere with MPowered’s exercise of its intellectual property rights; (4) frame or otherwise co-brand the Site or any content on the Site; (5) deep-link to any portion of the Site; or (6) use the Site for any illegal purpose. We reserve the right in our sole discretion to terminate or restrict your use of the Site, without notice, for any or no reason, and without liability to you or any third party. In such event, we may inform your Internet service provider of your activities and take appropriate legal action.
5. MPowered Content.
You acknowledge and agree that the Site contains certain information, such as text, graphics, images, videos, links, and other materials (collectively, “MPowered Content”) that is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You agree that as between you and MPowered, MPowered is the owner of MPowered Content. You may not reproduce, distribute, republish or retransmit any MPowered Content or materials posted at the Site except as expressly permitted herein. Except as expressly authorized by MPowered herein or under Customer Terms, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from such materials or MPowered Content. Systematic retrieval of data or other MPowered Content from the Site to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from MPowered is prohibited.
6. Third Party Sites/Information.
The Site may provide links to, or information gathered from, other sites on the Internet. MPowered makes no representations whatsoever about these sites or this information. Other sites linked to the Site may contain information or material that some people may find inappropriate or offensive. The provision of links to, or information gathered from, other sites on the Internet should not imply MPowered’s endorsement of any such sites or any association between MPowered and these other sites’ operators. These sites are not under the control of MPowered, and you acknowledge that MPowered, its affiliates, and its licensors are not responsible for the accuracy, legality, decency, copyright compliance, or any other content of, or gathered from, such sites. You also acknowledge that MPowered, its subsidiaries, its affiliates, and its licensors shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on the content, goods or services available on or through any sites linked to the Site, or your transmission of information, including personal data, to third-parties through such other sites.
7. Posting Guidelines.
MPowered may host message boards, chats, and other public forums on the Site and MPowered’s social media accounts. You agree not to post any (a) defamatory, abusive, profane, threatening, offensive, or illegal materials or information; (b) statements or materials that constitute junk mail, spam or unauthorized advertising, such as links to commercial products or services or any political campaigning; or (c) any information or material protected by copyright, trademark or other proprietary right without the permission of the copyright, trademark, or proprietary right owner. When you post content on the Site or provide information to MPowered, such as reviews or survey feedback, it belongs to you; however, you grant permission to MPowered to use that content in connection with our Site. Accordingly, you grant MPowered a non-exclusive, irrevocable, royalty-free, freely transferable, sublicensable, worldwide right and license to use, host, store, cache, reproduce, publish, display, perform, distribute, transmit, modify, adapt, commercialize, create derivative works of, and otherwise exploit such content in connection with our Site and Services. You represent and warrant that you have all the necessary rights to grant MPowered the foregoing license for all content you submit in connection with the Site and will indemnify us for any breach of this representation and warranty. For the sake of clarity, the foregoing paragraph does not apply to “End-User Data” (defined below), which is provided by Customers, Authorized Users, and End Users in connection with MPowered Services.
8. Payment Terms for MPowered Services.
8.1. Service Levels. The prices, features, and options of the MPowered Services depend on the service level selected by you, as well as applicable Customer Terms, if any. MPowered does not represent or warrant that a particular service level or application will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular service in accordance with the Customer Terms. Please check the Site for current pricing information.
8.2. Access. Access to the MPowered Services is granted upon MPowered’s receipt of payment. Access is terminated upon the expiration of the subscribed term, or upon the cessation of recurring payments.
8.3. Customer Accounts. Customer subscription fees are due within 30 days of an issued invoice.
8.4. Service Fees. All subscription and service fees are non-refundable.
9. Customer and End User Warranties.
You hereby represent and warrant to MPowered that: (a) you have all requisite rights and authority to use the Site and MPowered Services under these Terms and to grant all applicable rights herein; (b) you are responsible for all use of the MPowered Services associated with your Account, and the Accounts of your Authorized Users and Student Users (if applicable); (c) you are solely responsible for maintaining the confidentiality of your Account name(s) and password(s); (d) you agree to immediately notify MPowered of any unauthorized use of your Account of which you become aware; (e) you agree that MPowered will not be liable for any losses incurred as a result of a third party's use of your Account, regardless of whether such use is with or without your knowledge and consent; (f) you will use the MPowered Services for lawful purposes only and subject to these Terms and any applicable Customer Terms; (g) any information, including documents, that you submit, upload, or send to MPowered is true, accurate, and correct; and (h) you will not attempt to gain unauthorized access to the Site or the MPowered Services, other Accounts, computer systems, or networks under the control or responsibility of MPowered through hacking, cracking, password mining, or any other unauthorized means.
10. End-User Data.
11. MPowered Disclaimer of Warranties.
THE SITE, AND ALL CONTENT INCLUDED IN OR AVAILABLE THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE SITE IS PROVIDED WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. MPOWERED, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS COMPLETE, ACCURATE, RELIABLE OR CORRECT; THAT THE SITES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CONTENT ON THE SITE OR FROM OTHER USERS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IN ADDITION, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SITES IS DONE AT YOUR OWN DIRECTION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability.
Under no circumstances shall MPowered, its affiliates, or its licensors be liable for any consequential damages (including, without limitation, indirect, punitive, incidental or special damages, damages for loss of profits, goodwill, use, data or other intangible losses (even if MPowered has been advised of the possibility of such damages) including, without limitation, any that result from: (i) the use of, or inability to use, the Site; (ii) your reliance on advice, information, or other content on the Site; (iii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or transactions entered into through or from the Site; (iv) unauthorized access to or alteration of your transmissions or data, including Data; (v) statements or conduct of any third party on the Site; or (vi) any other material relating to the Site. MPowered, its affiliates and its licensors shall only be liable to the extent of actual damages incurred by you, not to exceed the purchase price received by MPowered for the service giving rise to the liability. This limitation applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if MPowered has been advised of the possibility of such damage. Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages MPowered’s liability in such jurisdictions shall be limited to the extent permitted by law.
No content on the site is in intended, and none should be misconstrued, as representing legal, medical, psychological or any other form of advice for which licensing or professional credentials are otherwise required. No guarantee is made or suggested regarding the effectiveness or individual applicability of statements, inferences or content of any kind displayed or conveyed through the site.
You agree to defend, indemnify and hold MPowered and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including attorneys’ fees, made by any third party that arise from (a) your access to and use of the Site; (b) violation of these Terms by you or your Authorized Users or Student Users, as applicable; or (c) infringement of any intellectual property or other right of any person or entity by you. MPowered reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with MPowered in asserting any available defenses.
14. International Use.
MPowered is headquartered in the United States and stores and processes End User Data in the United States. Site Visitors, Customers, Authorized Users, End Users, and Student Users who access the Site from outside the United States are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to comply will all applicable laws regarding the collection and transmission of Data.
15. Copyright Policy.
MPowered respects the intellectual property rights of others and expects visitors to its Site to do the same. MPowered will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide contact details to MPowered using the information below and provide the following: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
MPowered reserves the right to remove content alleged to be infringing without prior notice and at its sole discretion. MPowered may also terminate a repeat infringer’s Account. MPowered’s designated copyright agent for notice of alleged copyright infringement appearing on the Site can be reached at firstname.lastname@example.org.
16. Mandatory Arbitration, Waiver of Class Actions.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
16.1. Scope. This Section 16 is intended to be interpreted broadly and governs any and all disputes between MPowered and Site Visitors, Customers, End Users, and Student Users, including but not limited to, claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms; and claims that may arise after the termination of these Terms (“Claims”). The only disputes excluded from this broad prohibition are the litigation of certain intellectual property disputes as provided below.
16.2. Pre-Arbitration Procedure. We hope that we can resolve any disputes with you without resorting to arbitration. If you have an issue or a complaint, you agree to contact us at email@example.com before taking formal action in accordance with paragraph 16.3. In your contact, please provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). MPowered agrees to use reasonable efforts to address your issue or complaint.
16.3. Binding Arbitration. If, after engaging in good faith negotiations, we cannot reach an agreed-upon solution with you within sixty (60) days, then either party may initiate binding arbitration as the sole means to resolve Claims (except as provided below) subject to these Terms set forth below. You agree that any and all Claims shall be resolved by binding arbitration in accordance with the Consumer Arbitration Rules, as applicable, of the American Arbitration Association (“AAA”), having an address at 220 Davidson Avenue, 1st Floor, Somerset, New Jersey, 08873, or its successor. Information about AAA, including its rules and procedures, can be found at www.adr.org. If AAA, or its successor, is unable to arbitrate a particular Claim, then that Claim shall be resolved by binding arbitration pursuant to the rules and procedures of an equivalent organization as mutually agreed by the parties. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate and the Terms, including but not limited to, any claim that all or any part of this agreement or the Terms is unenforceable. All fees charged by AAA, or its successor, shall be paid in accordance with the fee schedule under the Consumer Arbitration Rules, as applicable. All fees charged by any other equivalent organization as mutually agreed by the parties shall be paid in accordance with the rules and procedures of the equivalent organization. Arbitration awards may be enforced in any court of competent jurisdiction. The provisions of this paragraph shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and shall survive settlement. EXCEPT AS MAY BE PROVIDED IN AAA’S CONSUMER DUE PROCESS PROTOCOL THAT ALLOWS CONSUMERS TO FILE CERTAIN CLAIMS IN SMALL CLAIMS COURT, YOU AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO A TRIAL IN COURT, EITHER WITH OR WITHOUT A JURY.
16.4. Class Action Waiver. You and MPowered expressly waive the right to file a class action or seek relief on a class basis. YOU AND MPOWERED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
16.5. Intellectual Property Exclusion. Notwithstanding the parties’ decision to resolve all disputes through arbitration, MPowered may bring enforcement actions, validity determinations, requests for emergent relief, including temporary restraining orders or preliminary injunctions, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights in the Site.
This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site.
17. Modifications to Service.
MPowered reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site or some or all of the content or services offered through the Site, with or without notice. You agree that MPowered shall not be liable to your or to any third party for any modification, suspension or discontinuance of the Site or some or all of the Services offered through it.
18. Severability and Integration.
19. Contact Information.
If have any questions or should you need any additional information about issues relating to the Site, please contact us at firstname.lastname@example.org or P.O. Box 414 Morris Plains, NJ 07950.