OER PROJECT
WEBSITE TERMS OF USE
Effective Date: August 21, 2024
The OER Project is operated as a non-commercial venture by Big History Project, LLC (referred to herein as “OER Project,” “we,” “us,” or “our”) for the purpose of providing a family of free, online courses to classroom teachers and their students on behalf of their associated schools. Our course material, including the Big History Project and the World History Project social studies courses, as well as the Climate Course and related educational resources (collectively, “Course Materials”) are located at http://www.oerproject.com and related webpages (the "Site") and our mobile or other downloadable application (the “App”) (collectively, with the Site, the “Platform”). All Course Materials, teaching resources and supporting services available on the Platform (the “Services”) are designed to be used by participating schools, school districts, and related entities and organizations, including but not limited to school personnel, such as classroom teachers or administrators, who access the Services on behalf of their school (each a “School”).
These Terms of Use ("Terms") are a legal agreement between you, a registrant or user of the Platform or Services ("you" or "your"), and us governing your use of the Services and Platform. Your access to and use of the Platform or Services is conditioned upon your acceptance of these Terms, which remain in effect until terminated (the “Term”). Please read these Terms carefully. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT USE, OR REGISTER FOR AN ACCOUNT ON, THE SITE.
IF YOU ARE A SCHOOL INVITING ONE OR MORE STUDENTS TO REGISTER FOR STUDENT USER ACCOUNTS ON, OR OTHERWISE USE, THE SITE FOR SCHOOL PURPOSES, YOU ARE BOUND BY THESE TERMS WITH RESPECT TO EACH SUCH STUDENT USER YOU DIRECT TO THE SITE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 21 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND OER PROJECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
TABLE OF CONTENTS
2. Limited License to Teacher Users.
3. Privacy.
5. User Feedback.
6. Intellectual Property Rights.
7. Permitted Use.
9. Links, Frames, Metatags, Bots and Scraping.
10. Site Availability and Support.
11. Termination.
14. Disclaimer of Certain Damages.
15. Limitation of Liability and Exclusive Remedies.
16. Independent Remedies.
17. Notice of Potential Limits.
18. Indemnity.
19. Communications.
20. Notices.
21. Dispute Resolution and Arbitration
23. Governing Law; Exclusive Jurisdiction; Venue; Jury Trial Waiver.
25. General.
Eligibility. The Services are provided solely for educational purposes on behalf of, and as directed by, participating Schools. The Services are not available to, (a) any users previously suspended or blocked by us, (b) any student whose use or registration is not required by their School for school purposes, or (c) any student who is under the age of 13 whose School does not have the authority to consent to such student’s use of the Services or Site in accordance with these Terms. By clicking the, “I Agree” button (if applicable) or by otherwise using or registering an account on the Site or otherwise using the Services, you represent that, (x) you have not been previously suspended or blocked from the Platform by us, (y) in the case of all students, you are using the Site solely for school purposes as directed by your School and as facilitated by a Teacher User requiring your use and registration on the Site on behalf of your School, and (z) your registration and/or use of the Platform is solely for educational purposes as directed by your School in compliance with any and all applicable laws and regulations.
Teacher Users. Classroom teachers at participating Schools acting on behalf of, and as directed by, such School may register as “Teacher Users” on the Site in order to use the Services to educate Student Users (defined below). Once registered, Teacher Users may (a) set up and manage virtual classrooms on behalf of their Schools and allow the Services to be used by designated Student Users as authorized by their affiliated School, and (b) access and use the App to participate in community forums and receive information or other resources regarding their teaching curriculum and materials. If you, as a Teacher User, instruct one or more Student Users to access, use, or register for accounts on, the Site, in addition to any other representations herein, you represent that, (i) you will actively facilitate and manage each Student Users’ access to and use of the Site and Services in accordance with these Terms, and (ii) in the case of Student Users under the age of 13 (“Children” or “Child”), you and your School have obtained and are able to provide consent on behalf of each such Child for their use of the Site and Services, including consent to our collection, use, processing, and disclosure of their information, which may include personally identifiable information, as set forth in our Privacy Policy. These representations apply to all School-directed use of our Services, regardless of whether a Teacher User or a Student User registers on our Site. Teacher Users manage and control the virtual classroom such Teacher User creates for Student Users. Unique classroom codes are required to enable students to register as Student Users on the Site. We require Teacher Users to strictly limit access to unique classroom codes, which should be shared only with students authorized by the School to use the Site for educational purposes.
Student Users. Each student directed by their School (typically through a Teacher User assigned to them by their School) to use the Site or Services may register as a “Student User.” At registration, each participating student must enter the classroom code provided to them when invited by their associated School to register as a Student User on the Site. Upon registration, Student Users are linked to their associated School and Teacher User based on the unique classroom code used during registration. Certain of our Services do not require a Student User to register as such.
School Districts. We may enter into supplemental written agreements with school districts with respect to use of the Platform and Services on a district-wide basis ("School Agreements"). Pursuant to School Agreements, we may provide additional services to school districts, and/or may provide additional service-based terms and conditions to school districts. Except as otherwise provided in a School Agreement, these Terms remain in effect for all users of the Platform in the relevant district.
Usernames; Password. If you register for an account on the Site, we ask that you provide OER Project with your current, complete, and accurate information. We may, but are not required to, verify your identity using the information you provide to us. You will create a unique username and password as part of your account registration and these may only be used by you. If a Student User forgets their password, the Teacher User associated with such Student User’s account may reset the Student User’s password on their behalf. If you, as a Teacher User, reset a Student User password, you agree to promptly communicate such replacement password to the applicable Student User. Other than as described in this Section, all users are responsible for keeping their username and password confidential and may not authorize anyone else to use them. You agree that OER Project and your School may attribute all use of your username to you and that you are responsible for all activity that occurs under your account. Please immediately notify your Teacher User or School in the case of Student Users, or OER Project in the case of Schools or Teacher Users at: help@oerproject.com if the security of your username or password has been compromised.
Social Networking Services. OER Project may permit adult, non-student, users to register for or authenticate their account through third-party social networking services, such as Facebook (a "Social Networking Service"). By registering and authenticating an account using a Social Networking Service, you agree that OER Project may access your Social Networking Service account information from the applicable Social Networking Service. You are solely responsible for your relationship with the Social Networking Service, including any content you may share to a Social Media Networking Service through links on the Platform. Technical safeguards are in place to prevent Student Users from registering for, or authenticating, their accounts by using Social Networking Service accounts, and any such registration by a Student User is strictly prohibited.
Student Use of Integrated Services. Schools may choose to allow their Student Users to log in on the Site using services, such as Google Classroom or Clever, or allow Student Users to utilize select writing or grading services, such as Turnitin.com (each, an “Integrated Service”). In all such cases, Schools are responsible for educating their Student Users on the proper use of, and for their Student Users' use of, any School-required Integrated Services.
Responsibility for Educational Records. If you are a School, you represent that you are familiar with and agree to be responsible for compliance with the Family Educational Rights and Privacy Act and the US Department of Education's implementing regulations at 34 CFR Part 99 (collectively, “FERPA”), and all other laws, rules and regulations concerning the collection, use and disclosure of personally identifiable information about the Student Users you invite to use the Site and Services. Please refer to our Privacy Policy for more about how we assist Schools in meeting their obligations to protect the privacy of these records.
2. Limited License to Teacher Users..
Subject to your complete and ongoing compliance with these Terms, as a Teacher User, OER Project grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one executable copy of the App (whether installed by you or pre-installed on your mobile device by the device manufacturer, wireless telephone provider, employer, or other third party) on a mobile device that you own or control; and (b) access and use the App during the Term, solely for its intended educational purposes.
OER Project's Privacy Policy describes our collection, use, and disclosure of your information, the choices you have relating to our collection and use of information about you, and the steps we take to protect that information. By using the Platform or Services, you expressly consent to our collection, use, storage, processing and disclosure of your information, including personally identifiable information, as described in our Privacy Policy. Schools and Teacher Users assume sole responsibility for providing appropriate notices and disclosures to parents, and obtaining and providing all necessary consents to our collection and use of information regarding your Student Users in connection with their use of the Site and Services.
Safeguards exist to prevent Student Users from posting User Content (defined below) on the Site that would be visible to anyone besides their associated Schools and Teacher Users. We may permit certain users to post content on the Platform, such as comments, videos or photos depicting their use of the Platform or Services, profile pictures, biographical “blurbs,” or other material that may be connected to their user accounts or community forums for Schools and/or Teacher Users which are made available through the App or other means (collectively, “User Content”). User Content allows our Schools and Teacher Users to share their experience of the Platform and Services and gain teaching insight or ideas from others. OER Project does not control or endorse and is not responsible or liable for User Content. If you post any User Content to the Platform, you grant us, all other participating Schools and Teacher Users, and all members of the public who may access publicly-available User Content on our Platform or the Services, or elsewhere, a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display that User Content throughout the world in any media, and the right to use and display the name that you submit in connection with such User Content. By posting User Content, you represent and warrant that you own or otherwise control all of the rights to the User Content that you post necessary to meet your obligations to us under these Terms; that the User Content is accurate; that use of the User Content you supply does not violate any law, these Terms, or the privacy, publicity, intellectual property or other rights of any other person or entity. You must not provide any User Content that infringes others’ copyrights or the intellectual property or privacy rights of others. You are solely responsible for all User Content you provide to us or make available to others through the Platform.
By submitting any ideas, feedback, or suggestions (“Feedback”) to us through the Platform, Services, or other means, you acknowledge and agree that: (a) your Feedback does not contain confidential or proprietary information of you or any third party; (b) we are not under any obligations of confidentiality with respect to the Feedback; (c) we may freely use, reproduce, distribute, and otherwise exploit the Feedback for any purpose; and (d) you are not entitled to any compensation of any kind from us.
6. Intellectual Property Rights.
OER Project owns the copyright in, or licenses from third parties all content available on the Platform, including the Services, text, photographs, graphics, OER Project logos, button icons, audio, video, and software (“Content”). “Big History Project” and "World History Project" are registered trademarks owned by us and may be used only with our written permission. If you believe that your work has been copied or otherwise used in a way that constitutes copyright infringement, or that otherwise violates an intellectual property right owned by you, please contact us in the manner described below in the "Copyright Infringement" section, if applicable, or the “Notice” section in the case of other intellectual property concerns.
The Platform and Services are designed to provide educational resources and support on behalf of participating Schools to their associated Teacher and Student Users. Registered users of the Platform may access and use the Platform and Services solely for School purposes and in accordance with these Terms. Except and solely to the extent such a restriction is impermissible under applicable law, you may not (a) use the Platform or Services for any unauthorized purpose, including for commercial purposes, or in any manner that either disparages or discredits any person or misrepresents your identity or any other fact or circumstance; (b) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Platform or Services; (c) make modifications to the Platform or Services; (d) interfere with or circumvent any feature of the Platform or Services, including any security or access control mechanism, or the data contained therein; (e) permit access to the Platform or Services by any third party; (f) disassemble, reverse engineer, or decompile the Platform or Services; (g) access the Platform or Services to build a competitive service or reproduce features of either of the foregoing; (ix) disclose any access credentials to the Platform. If you are prohibited under applicable law from using the Platform or Services, then you may not use it.
Generally, Course Materials available on or through the Site and Services are made available pursuant to the terms of the Creative Commons Attribution Non-Commercial License (CC-BY-NC). The applicable license is identified in the Course Materials themselves, and your use and exploitation of the Course Materials is governed by that license. Notwithstanding the generality of the foregoing, Course Materials may include or incorporate third-party materials (“Third-Party Content”). Where applicable (as where separate license terms apply), Third-Party Content in the Course Materials will be identified along with the license terms from the applicable rights holder to such Third-Party Content, if any (collectively, “Third-Party Licenses”). Although the Site and the Services, including Course Materials, are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining or using Third-Party Content under the applicable Third-Party Licenses or to limit your use of Third-Party Content under those Third-Party Licenses. Further, Third-Party Licenses may be more restrictive than the license applicable to the Course Materials in which the Third-Party Content is included – in such cases, you are solely responsible for obtaining and using Third-Party Content in accordance with the applicable Third-Party License, or, if your proposed use does not comply with the Third-Party License, either obtaining separate permission from the rights holder that supports your intended use or removing and/or replacing the Third-Party Content.
All distributed copies of Course Materials must display an appropriate copyright notice, such as: “Copyright 2020 Big History Project, LLC” in the case of Course Materials owned by us.
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Platform or the Services, you may contact our Designated Agent at the following address:
OER Project c/o Big History Project, LLC
4110 Carillon Point
Kirkland, WA 98033
Email: team@oerproject.com
Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Platform or the Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- 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;
- information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Your Notification of Claimed Infringement may be shared by OER Project with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to OER Project making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
Repeat Infringers. OER Project’s policy is to: (a) remove or disable access to material that OER Project believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Platform or the Services; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Platform and the Services by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. OER Project will terminate the accounts of users that are determined by OER Project to be repeat infringers. OER Project reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
Counter Notification. If you receive a notification from OER Project that material made available by you on or through the Platform or the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide OER Project with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to OER Project’s Designated Agent through one of the methods identified above in this Section, and include substantially the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which OER Project may be found, and that you will accept service of process from the person who provided notification under this Section above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to OER Project in response to a Notification of Claimed Infringement, then OER Project will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that OER Project will replace the removed content or cease disabling access to it in 10 business days, and OER Project will replace the removed content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless OER Project’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on OER Project’s system or network.
False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of OER Project relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” OER Project reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
9. Links, Frames, Metatags, Bots and Scraping.
You may link to the home page of the Site as long as you do not do so in a false or misleading manner. You may not frame the Content, the Services, or the Platform itself without our prior written consent. You may not use metatags or any other "hidden text" that incorporates the Content without OER Project's express written consent. You may not use automated means, such as bots, to access, scrape or otherwise collect Content without our express written consent.
10. Site Availability and Support.
You may access the Platform and Services if and when they are available and only for school purposes. OER Project does not guarantee continuous availability of the Platform, the Services, or its Content. The Platform and the Services may occasionally be down for service, upgrades, or for other reasons. To the maximum extent authorized under applicable law and subject to any written agreement we may have with your School, OER Project reserves the right to change, remove, delete, restrict, block access to, or stop providing any or all of the Platform or Services at its discretion.
You may terminate your continued agreement to these Terms at any time by deleting your associated user accounts and discontinuing your use of the Platform and Services, or by discontinuing your use of the Platform and Services if you do not have a user account. OER Project reserves the right to terminate the Services, the Platform, your account, or your access to the Platform and Services at any time, without notice, for any reason, including for your violation of any of the provisions of these Terms or the Privacy Policy. This provision may be limited solely by directly competing terms in any written agreement we may have with your School or School District. All provisions which by their nature are intended to survive termination shall so survive, including without limitation, Sections 4, 5, 6, 8, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 23, and 25.
WHEN USING OER PROJECT’S SERVICES AND PLATFORM, YOU ACKNOWLEDGE THAT WE PROVIDE THIS SITE, ITS CONTENT AND SERVICES FREE OF CHARGE TO ALL USERS IN RELIANCE ON THE FOLLOWING DISCLAIMERS AND LIMITATIONS OF LIABILITY, WHICH STATE THAT WE ARE NOT LIABLE FOR ANY CLAIM, LOSS OR INJURY RESULTING FROM YOUR FREE ACCESS TO, AND USE OF, OUR SERVICES OR THE PLATFORM. YOU AGREE THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH BELOW REPRESENT A FAIR ALLOCATION OF RISK BETWEEN OER PROJECT, ITS AFFILIATES, AND YOU WITH REGARD TO YOUR USE OF THE PLATFORM AND SERVICES AND ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US CONCERNING YOUR USE AND ENJOYMENT OF THE SERVICES WE OFFER ON THE PLATFORM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS PLATFORM, INCLUDING ALL DATA, INFORMATION, SOFTWARE, SERVICES AND CONTENT PRESENTED ON AND THROUGH THE PLATFORM, IS PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” SUBJECT TO THE TERMS OF ANY AGREEMENT WE MAY HAVE WITH YOUR SCHOOL OR SCHOOL DISTRICT, WE DO NOT MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OER PROJECT AND ITS AFFILIATES, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES THAT THE PLATFORM OR ITS CONTENT: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, COMPLETE, OR RELIABLE, OR (D) WILL BE FREE FROM VIRUSES, WORMS, OR OTHER HARMFUL OR MALICIOUS COMPONENTS, NOR DO WE WARRANT THAT ANY DEFECTS OR ERRORS ON THE PLATFORM OR IN THE CONTENT WILL BE CORRECTED. WE DO NOT ASSUME ANY LIABILITY RELATING TO DELAYS OR INTERRUPTIONS ATTRIBUTABLE TO THIRD PARTY FAILURES BEYOND OUR CONTROL. THE PLATFORM AND ALL CONTENT YOU DOWNLOAD OR OBTAIN FROM THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM.
14. Disclaimer of Certain Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PLATFORM, THE SERVICES, OR THESE TERMS, EVEN IF OER PROJECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Limitation of Liability and Exclusive Remedies.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THEY ARE NOT EXCLUDED OR DISCLAIMED UNDER SECTIONS 13 OR 14, OUR MAXIMUM, AGGREGATE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY UNDER THESE TERMS FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THESE TERMS, THE SERVICES, THE CONTENT, OR THE PLATFORM SHALL BE LIMITED TO FIVE DOLLARS ($5.00). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THESE TERMS OR THE PLATFORM WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES.
YOU AND OER PROJECT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE PLATFORM OR ITS CONTENT OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The exclusion of damages under Section 14 is independent of your exclusive remedy in Section 15 and it survives even if the exclusive remedy fails of its essential purpose or otherwise is deemed unenforceable. Each of the limitations of liability in Sections 13, 14, and 15 apply without regard to whether loss, liability, or damages arise from (a) breach of contract, (b) breach of warranty, (c) fault or tort, including negligence and misrepresentation, (d) strict liability, or (e) any other cause of action, to the extent the exclusions and limitations are not prohibited by applicable law.
17. Notice of Potential Limits.
Some jurisdictions do not allow the exclusion or limitation of damages (including incidental or consequential), loss, or liability from intentional acts (including fraud, fraudulent misrepresentation, and failure to disclose defects), product liability, or for death or personal injury. Nothing in Sections 13, 14, and 15 will be interpreted as excluding liability that cannot under applicable law be excluded in those jurisdictions, or that may directly conflict with any written contract we have with your School or School District. If you reside, or are otherwise subject to the laws in one of those jurisdictions, any statutory entitlement available to you will be deemed limited to the extent (if at all) permissible under that law and, if limitation is not permitted, the limitations and exclusions in this section may not apply to you.
You hereby agree to defend, indemnify, and hold OER Project and its affiliates, and their respective directors, officers, members, managers, employees, agents, partners, suppliers, and licensors (“Indemnified Persons”) harmless and will keep them indemnified from any third party claim or demand, including reasonable attorneys' fees, relating to, arising from, or allegedly arising from (a) your use of the Platform or Services, and any activities occurring under your account; (b) your violation of these Terms; or (c) your violation of any other party's rights or applicable law.
OER Project may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
OER Project may give you all required notices (including legal process) by any lawful method, including by posting notices on the Platform or by sending notice to any email address you provide to us. You agree to send notices to OER Project to the following address:
OER Project c/o Big History Project, LLC
4110 Carillon Point
Kirkland, WA 98033
Email: team@oerproject.com
21. Dispute Resolution and Arbitration.
- Generally. Except as described in Section 21.c (Exceptions) and 21.d (Opt-Out), you and OER Project agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
- YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND OER PROJECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 21 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Big History Project, LLC, Attention: Legal Department – Arbitration Opt-Out, 4110 Carillon Point, Kirkland, WA 98033 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once OER Project receives your Opt-Out Notice, this Section 21 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 23 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting OER Project.
- Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). OER Project’s address for Notice is: Big History Project, LLC, 4110 Carillon Point, Kirkland, WA 98033. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or OER Project may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, OER Project will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if OER Project has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
- Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or OER Project must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
- Arbitration Relief. Except as provided in Section 21.i (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by OER Project before an arbitrator was selected, OER Project will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
- No Class Actions. YOU AND OER PROJECT 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. Further, unless both you and OER Project agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If OER Project makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to OER Project’s address for Notice of Arbitration, in which case your account with OER Project will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 21.i (No Class Actions) or the entirety of this Section 21 (Dispute Resolution and Arbitration) is found to be unenforceable, or if OER Project receives an Opt-Out Notice from you, then the entirety of this Section 21 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 23 (Governing Law) will govern any action arising out of or related to these Terms.
We may modify or update these Terms on a going forward basis from time-to-time so you should review the Terms periodically. OER Project reserves the right to change these Terms at any time, in our sole discretion, upon notice to you. We may give notice by posting updated Terms on the Site, sending an email to your account email, or by any other reasonable means. Modifications become effective on the earlier of your use the Platform or Services with actual knowledge of modifications to these Terms, or thirty days following our provision of notice. We may require that you accept modified Terms in order to continue to use the Platform or the Services. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Platform and the Services. For the avoidance of doubt, disputes between us will be resolved in accordance with the Terms that were in place at the time the dispute arose. Except as expressly permitted in this Section 22, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
23. Governing Law; Exclusive Jurisdiction; Venue; Jury Trial Waiver.
These Terms and your use of the Platform and Services are governed by the laws of the State of Washington as applicable to contracts made and performed there, without reference to its choice of law rules. You expressly agree that jurisdiction and venue for any dispute relating to or arising from these Terms, the Platform, or the Content will reside in the State and Federal Courts of King County, Washington.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, IF FOR ANY REASON, ANY CLAIM OR CAUSE OF ACTION, OR ANY PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY A PARTY AGAINST THE OTHER PARTY, BASED UPON, ARISING OUT OF, OR RELATED TO THE PLATFORM, THE SERVICES, COURSE MATERIALS, CONTENT, OR THESE TERMS, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE, PROCEEDS IN FEDERAL OR STATE COURT, THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY. THIS WAIVER APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THESE TERMS.
We operate the Platform in the United States. If you choose to access our Platform from locations outside the United States, you consent to the collection, transmission, use, storage and processing of content and data (including your personal information) in the United States. You also agree to comply with and are solely responsible for ensuring compliance with all local laws, regulations, and rules in the jurisdiction in which you reside or access the Platform, if and to the extent local laws are applicable to use of our Platform. If you are under the age of 18, you confirm that you have received parental consent, if required in your jurisdiction, to open an account and enter into these Terms. Unless we have entered into a separate, mutually executed written agreement with you that says otherwise, we do not represent that the educational Content offered on our Platform is appropriate or available for use in jurisdictions outside the United States. The right to access and use the Platform is not granted in jurisdictions, if any, where it may be prohibited, or where your use would render us in violation of any applicable laws or regulations, including without limitation, applicable privacy laws, or subject us to any registration requirements within such jurisdiction or country. If you are located in a country embargoed by the United States or are on the United States Treasury Department’s “Specially Designated Nationals and Blocked Persons List,” you are not authorized to access or use the Platform.
If any provision of these Terms is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions of these Terms will remain in full force and effect. Section titles are only for convenience and have no legal or contractual significance. OER Project may assign these Terms, in whole or in part, at any time, with or without notice to you. You may not assign, transfer, or sublicense your rights, if any, under these Terms. If, at any time, OER Project fails to respond to a breach of these Terms by you or others, such failure will not waive OER Project's right to act with respect to subsequent or similar breaches. A waiver will only be binding on OER Project if it is in writing and signed by OER Project. These Terms (including any incorporated terms or policies, and product or service-specific additional terms, and any duly executed written agreement between us and your associated School) constitute the entire agreement between you and OER Project with respect to the Platform and Services. No one other than you and OER Project, the Indemnified Persons or OER Project’s successors and permitted assigns will have any right to enforce these Terms.
This section only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and OER Project only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or their content. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (1) product liability claims; (2) any claim that the Services fail to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have questions, comments or concerns about the Platform, including about the Content, please contact us at: help@oerproject.com.