Terms of Service

The following are the terms of service (“Terms of Service”) that define the relationship between EdQwest, Inc. (doing business as ExceptionALLY (“Company,” “ExceptionALLY,” “we,” or “us”)) and you, and govern your use of ExceptionALLY’s services.

Last updated: March 22, 2017.

Agreeing to our Terms

Thank you for your interest in ExceptionALLY, which owns and operates the services offered on Growexceptionally.com (“ExceptionALLY Website”) and any associated mobile applications (“ExceptionALLY Apps”) or products and services that Company may provide now or in the future (collectively, the “Service”).

When using the Service, you will also be subject to the ExceptionALLY Privacy Policy and any posted guidelines, policies or rules applicable to specific features of the ExceptionALLY Site or ExceptionALLY App, which may be posted from time to time (collectively the “Guidelines”). These Terms of Service, including any other Guidelines and future modifications (collectively, the “Agreement”) govern your use of the Service and is a legal contract between you and ExceptionALLY. By registering for an account on, or otherwise accessing or using the ExceptionALLY Service, you acknowledge that you have read and agree to be bound by this Agreement. If you are using the Service on behalf of an institution that has a separate written agreement with ExceptionALLY, that agreement governs your use of the Service.

If you are under the age of 18, you represent that your legal guardian has reviewed and agreed to the Agreement. If you don’t get your parent or guardian to read and agree to the Agreement, you don’t have permission to use the Service.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you”, “your” or “Member” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.

Using the Service

As long as you are complying with all of the terms and conditions of this Agreement, Company gives you permission to access and use the Service that you select through the applicable registration process. The Service is available for your personal, noncommercial use.

We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether, including, for example, if you do not comply with this Agreement or if we are investigating suspected misconduct. You can stop using our Service at any time, although we’ll be sorry to see you go. We may also stop providing Service to you, or add or create new limits to our Service or restrict your access to all or a part of the Service at any time without notice or liability. Access to and use of the Service itself is free, but in the future, we may offer new or additional special features which ExceptionALLY may charge for. Please also be aware that while we currently provide our mobile services for free, your carrier’s normal rates and fees still apply, such as text messaging and data fees.

The right to access and use the Service is revoked in jurisdictions where it may be prohibited, if any.

Your Information and Content

In the course of using the Service, you and other users may provide or post certain content or information which may be used by ExceptionALLY in connection with the Service and which may be visible to certain other users (“User Submissions”). Please visit our Privacy Policy for additional information on the types of information different types of users are able to provide. Additionally, some User Submissions may be deemed an Education Record (as defined below).

You retain all ownership rights you have in any User Submissions. ExceptionALLY does not claim any ownership rights in the User Submissions.

In order to allow ExceptionALLY to provide the Service, you hereby grant to us a limited, non-exclusive, sublicensable (as necessary to perform the Service), worldwide, royalty-free, and transferable (only to a successor) right and license to (i) use, copy, store, distribute, publicly perform and display, modify, and create derivative works (such as changes we make so that your content works better with our Service) such User Submissions as necessary to provide, improve and make the Service available to you and other users, including through any future media in which the Service may be distributed, (ii) use and disclose metrics and analytics regarding the User Submissions in an aggregate or other non-personally identifiable manner (including, for use in improving our service or in marketing and business development purposes), (iii) use any User Submission (including any Education Record) that has been de-identified for any product development, research or other purpose; and (iv) use for other purposes permitted by the ExceptionALLY Privacy Policy.

Company will only share and use your personally identifiable information in accordance with ExceptionALLY’s current Privacy Policy at http://www.growexceptionally.com/privacy.

The license in (i) above will terminate when you delete any User Submissions with intellectual property rights (like photos or videos) (“IP content”)), you or your Institution (as defined below) deletes an Education Record, you delete any personal information, or you delete your account, unless your content has been shared with others, and they have not deleted it. Note, however, that any User Submissions that may be in or related to messages sent through any messaging platforms provided by Company may be kept after you delete your account. When you delete IP content, Education Records, or personal information, it is deleted in a manner similar to emptying the recycle or trash bin on a computer. However, you understand that any removed User Submission may persist in backup copies for a reasonable period of time (but will not be available to others). You are responsible for making sure that you have all rights in the User Submissions, including the rights necessary for you to grant us the foregoing licenses to the User Submissions.

All information posted or transmitted through the Service is the responsibility of the person that posted it, and we will not be liable for any errors or omissions in any content. ExceptionALLY cannot guarantee the identity of any other users with whom you may interact in the course of using the Service, or the authenticity of any data which users may provide about themselves. You acknowledge that all content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We do not guarantee that we will publish any of your User Submissions, and reserve the right to remove User Submissions from the Service at any time for any reason, such as if we receive a notice reports a User Submission infringes someone’s intellectual property rights.

We always appreciate your feedback or other suggestions about ExceptionALLY, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them.

Privacy

Your privacy is extremely important to us, and we take great care to limit what we collect and how we use it. Please read our Privacy Policy which explains how we treat your personal information and protect your privacy when you use our Service. By using our Service, you agree that ExceptionALLY can use such data in accordance with our Privacy Policy.

Additional Terms by User Type

a) Teachers and school leaders: if you are a teacher, school leader, aide, or other similar personnel (“School Personnel”) accessing the Service on behalf of a school, school district, or other similar educational institution (the “Institution”), the following terms apply to you:

(i) You agree that you are acting on behalf of (or have permission from) your Institution to enter into this Agreement and to use the Service as part of your curriculum.

(ii) You further understand and acknowledge that COPPA prohibits online service providers from knowingly collecting personally identifiable information from children under 13 years of age without Consent and you understand that we will not let children under the age of 13 use certain features of the Service unless ExceptionALLY obtains Consent from the child’s parent or legal guardian if the student is creating an account on ExceptionALLY.

(iii) School Consent. You acknowledge and agree that when School Consent must be utilized to allow children under 13 to use the Service, you and/or the Institution will be solely responsible (and hereby agree that ExceptionALLY is not responsible) for compliance with COPPA. This includes without limitation, limiting access to the Service to those student users from whom School Personnel has received valid Consent forms and complying with all parental requests regarding the collection, use and disclosure of such parent’s child’s information. School Personnel or the Institution are responsible for disseminating parental consent forms to the parents of potential student users, for confirming receipt of valid consent forms for each child before granting the student access to the Service, and for retaining such consent forms on file. If a parent user does not consent or rescinds such School Consent, School Personnel or the Institution shall immediately notify ExceptionALLY to discontinue that student’s access to the Service and ensure that such student’s information is no longer accessible through the Services.

(iv) Only School Personnel who are current employees of the Institution may use the Service on the Institution’s behalf. Upon termination of a teacher or other staff member’s employment with the Institution, such individual must return and cease using all login details and student access he or she has in his or her possession. If at any time you learn a user of the Service claims to be affiliated with your Institution who is not, in fact, affiliated with your Institution, you will notify Company immediately.

b) Parents: if you are a parent of a student that has been invited to create an account on the Service or is given access to the Service by School Personnel, then the following terms apply to you:

(i) If your child is under the age of 13, Consent must be given in order for a student to use certain features of an ExceptionALLY student account. This Consent may be obtained either from 1) ExceptionALLY if the student is setting up a student account; or 2) a student’s School Personnel if utilizing certain features of the Service without setting up an account. If you are the parent or legal guardian of a child who has created an account with us and you did not receive an email seeking your Consent, you can email us at info@growexceptionally.com to have that child’s account deleted. Please note, that if you as a parent provide an email to School Personnel when the school is obtaining School Consent, we may send an email asking you to verify your child’s account, but you will not receive any other emails unless you have opted in to email marketing or have separately created an account on our Service.

Information collected from students (including personal information and information collected automatically) is never used or disclosed for third-party advertising or any kind of first- or third-party behaviorally-targeted advertising, and personal information is never sold or rented to anyone, including marketers or advertisers. See our Privacy Policy for more details.

(ii) You further agree that we may send you messages, alerts, and other communications through the Service, including via email, web alert, text messages, push notifications and other similar means, in accordance with the preferences you set through the Service, and you agree to accept such messages, and pay any applicable network access, data usage, or similar fees.

FERPA

Certain information that may be provided to ExceptionALLY by School Personnel that is directly related to a student and maintained by an Institution, may be considered an education record (“Education Record”) under the Family Educational Rights and Privacy Act (“FERPA”). Additionally, certain information, provided to Company by School Personnel about a student, such as student name and grade level, may be considered directory information under FERPA (“Directory Information”) and thus not an Education Record. A school may not generally disclose personally identifiable information from an eligible student’s education records to a third party without written consent of the parent and/or eligible student or without meeting one of the exemptions set forth in FERPA (“FERPA Exemption(s)”), including the exemption for Directory Information (“Directory Information Exemption”) or disclosure to school officials with a legitimate educational interest (“School Official Exemption”).

As School Personnel or an Institution providing Directory Information or any Education Record to ExceptionALLY, you represent, warrant and covenant to ExceptionALLY, as applicable, that your Institution has:

(i) complied with the Directory Information Exemption, including, without limitation, informing parents and eligible students what information the Institution deems to be directory information and allowing parents and eligible students a reasonable amount of time to request that schools not disclose directory information about them; and/or

(ii) complied with the School Official Exemption, including, without limitation, informing parents in their annual notification of FERPA rights that the Institution defines “school official” to include service providers and defines “legitimate educational interest” to include services such as the type provided by ExceptionALLY; or

(iii) obtained all necessary parental or eligible student written consent to share the Directory Information and Educational Records with Company, in each case, solely to enable Company’s operation of the Service.

ExceptionALLY will never share Education Records with third parties except (i) as directed by an ExceptionALLY user (i.e., teacher sharing with another teacher or parent); or (ii) to our service providers that are necessary for us to provide the Service, as stated in our Privacy Policy. Education Records are never used or disclosed for third party advertising or any kind of first- or third-party behaviorally-targeted advertising to students or parents. Additionally, information collected directly from a student using ExceptionALLY is never used or disclosed for third party advertising, or any kind of first- or third-party behaviorally-targeted advertising to the student, and personal information collected from a student is never sold or rented to anyone. This section shall not be construed (i) to prohibit ExceptionALLY from marketing or advertising directly to parents so long as the marketing or advertising did not result from the use of Educational Records to provide behaviorally targeted advertising or (ii) to limit the ability of ExceptionALLY to use student information or Educational Records for adaptive learning or customized student learning purposes.

ExceptionALLY may use Education Records that have been de-identified for product development, research or other purposes (“De-Identified Data”). De-Identified Data will have all direct and indirect personal identifiers removed, this includes, but is not limited to, name, date of birth, demographic information, location information and school identity. ExceptionALLY agrees not to attempt to re-identify the De-Identified Data and not to transfer the De-Identified Data to a third party unless that party agrees not to attempt re-identification.

ExceptionALLY Technology

The Service and the ExceptionALLY Technology are intended solely for the personal, non-commercial use of our users and may only be used in accordance with this Agreement. “ExceptionALLY Technology” means all past, present and future content of the Service, including, all the software, hardware and technology used to provide the Service (including ExceptionALLY proprietary code and third-party software), user interfaces, materials displayed or performed on the Service, such as text, graphics, articles, photographs, images, illustrations and the design, structure, sequence and “look and feel” of the Services, and all other intellectual property, including all ExceptionALLY Marks. ExceptionALLY Technology is protected by copyright and other intellectual property laws. You are not allowed to use, store, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, create derivative works from, display, license, sell or otherwise exploit the ExceptionALLY Technology for any purposes other than as expressly permitted under this Agreement. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any ExceptionALLY Technology. “ExceptionALLY Marks” means the trademarks, service marks, logos, or any other trade name, trademarks, service marks and other distinctive or proprietary brand features of ExceptionALLY.

Using our Service does not give you ownership of any intellectual property rights in our Service or the ExceptionALLY Technology. You may not use content from our Services, including User Submissions, unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any ExceptionALLY Marks. Don’t remove, obscure, or alter any copyright or other legal notices displayed in or along with our Services.

You may download a single copy of the ExceptionALLY App for personal, non-commercial use only.

Social Media

Company may, now or in the future, incorporate certain functions that allow you to interact with the Service through your accounts on certain supported third party services, such as social networks or network storage sites (“Linked Accounts”), such as with “Like” and “Share” buttons, or similar features. If you choose to use such features, you grant Company permission to access and use your Linked Account for the purpose of processing your requests. Your use of Linked Accounts is subject to the applicable third party terms.

Modification to Agreement

We may modify this Agreement or Guidelines to, for example, reflect changes to the law or changes to our Services. You should look at the Agreement regularly. We’ll post notice of modifications to this Agreement on this page. Changes will not apply retroactively and will only become effective when (a) you use the Service after you know about the change, or (b) thirty days after they are posted (whichever is sooner). However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. Your continued use of the Services, following notice of the changes to the Agreement or Guidelines, constitutes your acceptance of our amended terms, policies or guidelines. If you do not agree to the modified Agreement, you should discontinue your use of the Service.

ExceptionALLY will not change how Education Records are used or shared under these Terms of Service without advance notice and consent from a School Official or Institution.

Your Warranty

You warrant, represent and agree that you will not provide any User Submissions or otherwise use the Service in a manner that (i) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render Company in violation of any applicable laws or regulations, including without limitation COPPA and FERPA; (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of your account in any way, such as allowing someone else access to your account or password. Additionally, you represent, warrant and agree that you (i) possess all rights necessary to provide your User Submissions and grant Company the rights above and (ii) you are solely responsible for compliance with the applicable provisions of COPPA as set forth above when obtaining School Consent.

Restrictions

We do our best to keep ExceptionALLY safe, but we cannot guarantee it. We need your help to keep ExceptionALLY safe, which includes the following commitments by you when using our Service:

  1. You will only use the Service as permitted by law, including applicable export or re-export control laws and regulations.
  2. You will not post unauthorized commercial communications (such as spam or advertisements) on or through the Service.
  3. You will not collect users’ content or information, or otherwise access the Service, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission.
  4. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on the Service.
  5. You will not upload viruses or other malicious code, files or programs.
  6. You will not collect, solicit or otherwise obtain login information or access an account belonging to someone else.
  7. You will not collect, use or disclose data, including personal information, about other users without their consent or for unlawful purposes or in violation of applicable law or regulations.
  8. You will not bully, intimidate, or harass any user or use the Service in any manner that is threatening, abusive, violent, or harmful to any person or entity, or invasive of another’s privacy.
  9. You will not post content that: is hate speech, discriminating, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
  10. You will not use the Service to do anything unlawful, deceptive, misleading, illegal, unethical, malicious, or discriminatory.
  11. You will not do anything that could disable, overburden, or impair the proper working or appearance of the Service or prevent other users from using the Service, such as a denial of service attack or interference with page rendering or other Service functionality.
  12. You will not use the Service in any commercially unreasonable manner or in any manner that would disparage ExceptionALLY.
  13. You will not impersonate an ExceptionALLY employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.
  14. You will not facilitate or encourage any violations of this Agreement or our policies.

Any violation of the above may be grounds for termination of your right to access or use the Service.

Experimental Features

We may provide experimental features for you to try. These experimental features are not guaranteed to work the first time or any time. These features may abruptly and unexpectedly cease functioning, or disappear altogether. Other features of ExceptionALLY are not regularly tested for compatibility with experimental features. Experimental features will be added and old ones removed, possibly (probably) without notice.

WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY

We provide our Service using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services.

DISCLAIMER OF WARRANTIES. THE SERVICE (AND ANY ASSOCIATED CONTENT OR SOFTWARE) ARE PROVIDED ON AN “AS IS” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE EXCEPTIONALLY TECHNOLOGY, SERVICES, AND CONTENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF QUALITY, ACCURACY, PERFORMANCE, AVAILABILITY, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPTIONALLY MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE ERROR FREE OR UNINTERRUPTED, THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. SOME FEATURES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER.

LIMITATION OF LIABILITY. UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL EXCEPTIONALLY OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF EXCEPTIONALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO (i) THIS AGREEMENT; (ii) YOUR USE OR THE INABILITY TO USE THE SERVICES, CONTENT, OR USER SUBMISSIONS; OR (iii) ANY INTERACTION WITH ANY THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICE, INCLUDING OTHER USERS.

IN NO EVENT WILL EXCEPTIONALLY OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU IN THE AGGREGATE (FOR ALL POTENTIAL CLAIMS BY YOU) FOR ANY DAMAGES INCURRED IN EXCESS OF THE GREATER OF ANY FEES YOU HAVE ACTUALLY PAID TO COMPANY FOR USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM, OR ONE HUNDRED DOLLARS ($100).

THIS SERVICE MAY CONTAIN TRANSLATIONS POWERED BY GOOGLE. GOOGLE DISCLAIMS ALL WARRANTIES RELATED TO THE TRANSLATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, RELIABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

Registration and Security

As a condition to using Service, you may be required to register with Company and select a password and username or provide additional contact information (“Company User ID”). You must provide Company with accurate, complete, and updated Company User ID information. You may not select or use as a Company User ID a name of another person with the intent to impersonate that person. You will not provide any false information or create an account for anyone other than yourself without permission. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password and will not share with anyone or let anyone else access your account. You may not transfer your account to anyone without express prior written consent of Company.

You represent, warrant and covenant all registration information you submit is truthful and accurate.

Indemnity

You will indemnify, defend, and hold Company, its parents, partners, subsidiaries, affiliates, officers, and employees harmless from and against all damages, losses, demands, liabilities, settlements, costs and expenses of any kind (including reasonable attorneys’ fees) from any claim or demand made by any third party relating to or arising out of (i) your access to, use, or misuse of the Service, (ii) your violation of this Agreement (including any failure to obtain or provide any necessary consent and/or violation of applicable laws or regulations), or (iii) the infringement by you or any third party using your account of any intellectual property or other right of any person or entity, including in connection with your User Submissions.

Copyright Protection

It is ExceptionALLY’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA“). ExceptionALLY may remove any allegedly infringing content without any liability to you. ExceptionALLY will promptly terminate without notice any User’s access to the Service where the User is a “repeat infringer” of copyrights. ExceptionALLY, however, reserves the right to identify and terminate Users under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that User.

Third Parties and User Interactions

The Service may contain links to third party websites that are not owned or controlled by Company, and includes features that allow you to interact and communicate with third parties. When you access third party websites or interact or communicate with third parties through the Service, you do so at your own risk. Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites, or which are posted to or through the Service by other users. Your interactions with organizations and/or individuals found on or through the Service are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any other person.

User Disputes. ExceptionALLY is not responsible for the actions, content, information or data of other third parties, including other users. You are solely responsible for your interactions with other users of the Services, and any other parties with whom you interact through the Service. We reserve the right, but have no obligation, to become involved in any way with these disputes.

Release. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use, privacy or data. If you are a California resident, you waive California Civil Code §1542, which says: “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 settlement with the debtor.” And, if you are not a California resident, you waive any applicable state statutes of a similar effect.

Termination

This Agreement shall remain in full force and effect while you use the Service. You may terminate your use of the Service or your account at any time by contacting us at info@growexceptionally.com – parents, you can also terminate your child’s account the same way, although we will need to verify your identity (such as requiring that you send the request to us from the same email address you used to provide your consent to activate the student account originally). Company may suspend or terminate your access to the Service or your account at any time, for any reason (without cause or for your violation of any term of this Agreement), and without warning or notice, which may result in the loss of information associated with your account. Upon termination of your account, your right to use the Service will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

Dispute Resolution

a) Generally: In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and Company agree that any and all disputes arising in connection with these Terms of Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms of Service. You understand and agree that, by entering into these Terms of Service, you and Company are each waiving the right to a trial by jury or to participate in a class action.

b) Exceptions: Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

c) Arbitration: Any arbitration between you and Company will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company.

d) Notice; Process: A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Company’s address for Notice is: EdQwest, Inc., 478 Hamilton St. SE, United States of America. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Company shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Company in settlement of the dispute prior to the arbitrator’s award.

e) Fees: In the event that you commence arbitration in accordance with these Terms of Service, Company will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your 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 AAA Rules. In such case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

f) No Class Actions: you and company 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 Company 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.

g) Enforceability: if only Subsection F of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in this Section shall govern any action arising out of or related to these Terms of Service.

Miscellaneous

The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without restriction. This Agreement is governed by and construed in accordance with the laws of the State of Georgia without regard to the conflict of laws provisions thereof. To the extent any dispute arising from or relating to the subject matter of this Agreement is permitted to be brought in a court of law, such claim shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia, and for all purposes of this Agreement, you and Company consent to the exclusive jurisdiction and venue of such courts. Unless and solely to the extent that you or your Institution have a separate written agreement with Company that governs your use of the Service (in which case such agreement will control), we both agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that the Agreement may not be modified, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement posted to the Website will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.

For information about how to contact Company, please visit our contact page.