Terms of Service

Last Updated: May 1, 2015 Introduction; Your Agreement to these Terms of Service. Welcome to the web site and online services (the “EdCaliber Site”) provided by EdCaliber, which is owned and operated by Performio Solutions, Inc (“EdCaliber”). The following Terms of Service for the EdCaliber Site is a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age (“You”), and EdCaliber regarding your use of the EdCaliber Site. Visitors and users of the EdCaliber Site are referred to individually as “User” and collectively as “Users”. PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. BY REGISTERING FOR, ACCESSING, BROWSING, OR USING THE EDCALIBER SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”).

Table of Contents

  1. Eligibility
  2. Privacy Notice
  3. Individual Features and Services
  4. Modification of these Terms
  5. Software and Content Downloads
  6. User Postings License Grant; Representations and Warranties
  7. Digital Millennium Copyright Act
  8. Prohibited Conduct
  9. Account; Access to Your User Postings; Fees & Payments
  10. Third-Party Sites, Products and Services; Links
  11. Termination; Terms of Service Violations
  12. Ownership; Proprietary Rights
  13. Indemnification
  14. Disclaimers; No Warranties
  15. Limitation of Liability and Damages
  16. Miscellaneous (including Dispute Resolution and Arbitration)

1.   Eligibility

The EdCaliber Site is not available to persons under the age of 18 or to any Users previously suspended or removed from the EdCaliber Site by EdCaliber. By clicking the “I Agree” button or by otherwise using the EdCaliber Site, You represent that You are at least 18 years of age and have not been previously suspended or removed from the EdCaliber Site by EdCaliber.

2.   Privacy Notice

Your privacy is important to EdCaliber. EdCaliber’s Privacy Policy is hereby incorporated into these Terms by reference. Please read this notice carefully for information relating to EdCaliber’s collection, use, and disclosure of your personal information. If you are a teacher subscribing to the EdCaliber Site, you hereby acknowledge that EdCaliber may disclose to the school listed on your account that you are a user of the EdCaliber Site in the event EdCaliber approaches the school to subscribe to the EdCaliber Site.

3.   Individual Features and Services

When using the EdCaliber Site, You will be subject to any additional posted guidelines or rules applicable to specific services and features, which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into these Terms.

4.   Modification of these Terms

EdCaliber reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time. Please check these Terms and any Guidelines periodically for changes. Your continued use of the EdCaliber Site after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the EdCaliber Site.

5.   Software and Content Downloads

EdCaliber and its licensors may make certain software and other content available to You for download (for a fee or otherwise) from the EdCaliber Site. All such software or other content that You download shall be subject to the terms and conditions included with such software or content or otherwise presented to You at the time of download.

6.   User Postings License Grant; Representations and Warranties

6.1.    User Postings Generally

EdCaliber may now or in the future permit the posting by You and other users of notes, written works, images and videos or other communications (collectively, “User Postings”) and the hosting, sharing, and/or publishing of such User Postings. You understand that whether or not such User Postings are published, EdCaliber does not guarantee any confidentiality with respect to any submissions.

6.2.    Limited License Grant to EdCaliber

By submitting or distributing User Postings through the EdCaliber Site, You hereby grant to EdCaliber a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, distribute and re-distribute, and otherwise exploit your User Postings, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).

6.3.    Limited License Grant to Other EdCaliber Users

By submitting or distributing User Postings through the EdCaliber Site, You hereby grant to each User of the EdCaliber Site a non-exclusive license to access and use your User Postings. The foregoing license granted by You terminates as to a specific User Posting once You remove or delete such User Posting from the EdCaliber Site provided, however, that User’s rights to such User Posting arising out of distributions occurring on or prior to deletion of such User Posting from the EdCaliber Site survive any termination or expiration of the license granted in this Section 6.3.

6.4.    User Postings Representations and Warranties

You are solely responsible for your User Postings and the consequences of posting or publishing them. By uploading and publishing your User Postings, You affirm, represent, and warrant that: (1) You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize EdCaliber and EdCaliber’s Users to use and distribute your User Postings as necessary to exercise the licenses granted by You in this Section and in the manner contemplated by EdCaliber and these Terms of Service; (2) your User Postings do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (3) your User Postings do not contain any viruses, adware, spyware, worms, or other malicious code. Violators of these third-party rights may be subject to criminal and civil liability. EdCaliber reserves all rights and remedies against any User who violates these Terms of Service.

6.5.    User Postings Disclaimer

You understand that when using the EdCaliber Site You will be exposed to User Postings from a variety of sources, and that EdCaliber is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Postings. You further understand and acknowledge that You may be exposed to User Postings that are inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against EdCaliber with respect thereto. EdCaliber does not endorse any User Postings or any opinion, recommendation or advice expressed therein, and EdCaliber expressly disclaims any and all liability in connection with User Postings. If notified by a User or a content owner of a User Posting that allegedly does not conform to these Terms of Service, EdCaliber may investigate the allegation and determine in its sole discretion whether to remove the User Posting, which it reserves the right to do at any time and without notice. For clarity, EdCaliber does not permit copyright infringing activities on the EdCaliber Site.

7.   Digital Millennium Copyright Act.

It is EdCaliber’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to EdCaliber’s DMCA Notification Guidelines. EdCaliber will promptly terminate without notice your access to the EdCaliber Site if You are determined by EdCaliber to be a “repeat infringer.” A repeat infringer is a User who has been notified by EdCaliber of infringing activity violations more than twice and/or who has had a User Posting or any other user-submitted content removed from the EdCaliber Site more than twice.

8.   Prohibited Conduct.

BY USING THE EDCALIBER SITE YOU AGREE NOT TO:

  1. use the EdCaliber Site for any purposes other than to disseminate or receive original or appropriately licensed content and/or to access the EdCaliber Site as such services are offered by EdCaliber;
  2. rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 12, below);
  3. post, upload, or distribute any defamatory, libelous, or inaccurate User Postings or other content;
  4. post, upload, or distribute any User Postings or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
  5. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the EdCaliber Site accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the EdCaliber Site, or perform any other similar fraudulent activity;
  6. delete the copyright or other proprietary rights on the EdCaliber Site or User Postings;
  7. make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the EdCaliber Site. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
  8. use the EdCaliber Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
  9. defame, harass, abuse, threaten or defraud Users of the EdCaliber Site, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the EdCaliber Site for any commercial use, it being understood that the EdCaliber Site is for personal, non-commercial use only;
  10. use the EdCaliber Site if You are under the age of 18 years old;
  11. remove, circumvent, disable, damage or otherwise interfere with security-related features of the EdCaliber Site or User Postings, features that prevent or restrict use or copying of any content accessible through the EdCaliber Site, or features that enforce limitations on the use of the EdCaliber Site or User Postings;
  12. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the EdCaliber Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
  13. modify, adapt, translate or create derivative works based upon the EdCaliber Site or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law; or
  14. intentionally interfere with or damage operation of the EdCaliber Site or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.

9.   Account; Access to Your Lesson Plans; Fees & Payments.

9.1.    Account

When You use the EdCaliber Site to upload and/or download or purchase content or any products, services, or information from EdCaliber, You may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and You agree to accept responsibility for all activities that occur under your account or password. You agree that the information You provide to EdCaliber on registration and at all other times will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. If You have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to immediately notify EdCaliber. You may be liable for the losses incurred by EdCaliber or others due to any unauthorized use of your EdCaliber Site account.

9.2.    Access to Your User Postings

EdCaliber permits Users to share their User Postings with a select group of other Users, or make their User Postings public for all (even non-EdCaliber Site users) to view. You acknowledge and agree that although EdCaliber allows you to restrict some User Postings you create from others, EdCaliber does not guarantee that such User Postings will never be accessible by others. In the event of unauthorized access, EdCaliber will use reasonable efforts to notify you pursuant to Section 16.1 below. EDCALIBER HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY UNAUTHORIZED ACCESS TO ANY RESTRICTED USER POSTINGS.

9.3.    Featured User Postings

EdCaliber may, from time to time, feature a User Posting on the Site (a “Featured User Posting”). EdCaliber will choose such Featured User Posting from the publicly accessible User Postings available on the Site.

9.4.    Fees

You agree to pay all fees and charges specified when you signed up for the EdCaliber Site and any part thereof. All fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the EdCaliber Site.

9.5.    Credit Card Authorization

You may be asked to provide EdCaliber with a credit card number from a card issuer that we accept in order to activate and/or pay for any fees related to the EdCaliber Site. EdCaliber may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.

9.6.    Payment Method

EdCaliber will charge the annual subscription fee and any other additional fees you authorize to the credit card account provided by you. By authorizing EdCaliber to charge a credit card for the fees associated with your subscription, you are authorizing EdCaliber to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer, and the issuer informs EdCaliber of the new replacement card account) for all fees or charges associated with your subscription including any renewal fees as described below. You authorize the card issuer to pay any amounts described herein and authorize EdCaliber, or any other company that acts as a billing agent for EdCaliber, to continue to attempt to charge all sums described herein to your credit card account until such amounts are paid in full. You agree to provide EdCaliber updated information on your credit card upon EdCaliber’s request and any time the information earlier provided is no longer valid. If payment is not received by EdCaliber from your credit card issuer or its agents, you agree to pay all amounts due upon demand by EdCaliber.

9.7.    Automatic Renewal of Annual Subscription

When you sign up online for the EdCaliber Site, your annual subscription will be set to automatically renew upon its expiration. This means that unless you cancel your account or change its renewal settings prior to its expiration, your account will automatically renew for another [year]. At the time of renewal, we will charge your credit card the then-current fees to renew the EdCaliber Site. About thirty (30) days prior to your expiration date we will notify you by email that your account is about to renew and remind you that your credit card will be billed the indicated EdCaliber Site fees on the renewal date. You may change your renewal settings at any time by going to [—-].

9.8.    Changes in Price

EdCaliber may at any time, upon notice required by applicable law, change the price of the EdCaliber Site or any part thereof, institute new charges or fees, or charge a fee for the EdCaliber Site or any part thereof where a fee was not previously charged. Price changes and organization of new charges implemented during your subscription term will apply to subsequent subscription terms and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your account and stop using the EdCaliber Site. Your continued use of the EdCaliber Site after the effective date of any such change shall constitute your acceptance of such change.

9.9.    No Refunds

All fees relating to the EdCaliber Site, including any fees charged for access to the EdCaliber Site, are final and nonrefundable.

10.   Third-Party Sites, Products and Services; Links

The EdCaliber Site may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). EdCaliber does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the EdCaliber Site are solely between You and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.

11.   Termination; Terms of Service Violations

11.1.    EdCaliber

You agree that EdCaliber, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with EdCaliber or your use of the EdCaliber Site and remove and discard all or any part of your account, User profile, and any User Postings, at any time. EdCaliber may also in its sole discretion and at any time discontinue providing access to the EdCaliber Site, or any part thereof, with or without notice. You agree that any termination of your access to the EdCaliber Site or any account You may have or portion thereof may be affected without prior notice, and You agree that EdCaliber will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies EdCaliber may have at law or in equity. As discussed herein, EdCaliber does not permit copyright infringing activities on the EdCaliber Site, and will terminate access to the EdCaliber Site, and remove all User Postings or other content submitted by any Users who are found to be repeat infringers.

11.2.    You

Your only remedy with respect to any dissatisfaction with (i) the EdCaliber Site, (ii) any term of these Terms of Service, (iii) Guidelines, (iv) any policy or practice of EdCaliber in operating the EdCaliber Site, or (v) any content or information transmitted through the EdCaliber Site, is to terminate this Terms of Service and your account. You may terminate this Terms of Service at any time by deleting your account with the EdCaliber Site and discontinuing use of any and all parts of the EdCaliber Site. The EdCaliber Site will be terminated at the end of the service period for which you have paid and unused subscription fees are nonrefundable.

12.   Ownership; Proprietary Rights

The EdCaliber Site is owned and operated by EdCaliber. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the EdCaliber Site provided by EdCaliber (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Postings that are provided and owned by Users, all Materials contained on the EdCaliber Site are the property of EdCaliber or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to EdCaliber or its affiliates and/or third-party licensors. Except as expressly authorized by EdCaliber, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. EdCaliber reserves all rights not expressly granted in this Terms of Service.

13.   Indemnification

You agree to indemnify, save, and hold EdCaliber, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the EdCaliber Site, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. EdCaliber reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify EdCaliber, and You agree to cooperate with EdCaliber’s defense of these claims. EdCaliber will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.

14.   Disclaimers; No Warranties.

14.1.    No Warranties

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EDCALIBER, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ALL WITH REGARDS TO THE SITE AND THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EDCALIBER OR THROUGH THE EDCALIBER SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 14 THE TERM EDCALIBER INCLUDES EDCALIBER’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.

14.2.    “As is” and “As available” and “With All Faults”

YOU EXPRESSLY AGREE THAT USE OF THE EDCALIBER SITE IS AT YOUR SOLE RISK. THE EDCALIBER SITE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, USER POSTINGS, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE EDCALIBER SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

14.3.    Content

EDCALIBER, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, USER POSTINGS, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE EDCALIBER SITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

14.4.    Accuracy

EDCALIBER, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE EDCALIBER SITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

14.5.    Harm to Your Computer

YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE EDCALIBER SITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

15.   Limitation of Liability and Damages

15.1.    Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL EDCALIBER OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE EDCALIBER SITE OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH EDCALIBER, EVEN IF EDCALIBER OR AN EDCALIBER AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, EDCALIBER’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

15.2.    Limitation of Damages

IN NO EVENT WILL EDCALIBER OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE EDCALIBER SITE OR YOUR INTERACTION WITH OTHER EDCALIBER SITE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE EDCALIBER SITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

15.3.    Reference Sites

THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN EDCALIBER AND RECEIVED THROUGH OR ADVERTISED ON THE EDCALIBER SITE OR RECEIVED THROUGH ANY REFERENCE SITES.

15.4.    Basis of the Bargain

YOU ACKNOWLEDGE AND AGREE THAT EDCALIBER HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND EDCALIBER, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND EDCALIBER. EDCALIBER WOULD NOT BE ABLE TO PROVIDE THE EDCALIBER SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

15.5.    Limitations by Applicable Law

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

16.   Miscellaneous

16.1.    Notice

EdCaliber may provide You with notices, including those regarding changes to these Terms of Service, by email, regular mail or postings on the EdCaliber Site. Notice will be deemed given twenty-four hours after email is sent, unless EdCaliber is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the EdCaliber Site. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the EdCaliber Site is deemed given 30 days following the initial posting.

16.2.    Waiver

The failure of EdCaliber to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by EdCaliber.

16.3.    Dispute Resolution and Arbitration

(a)    Governing Law

These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.

(b)    Arbitration

For any claim related to these Terms of Service or the EdCaliber Site, excluding claims for injunctive or other equitable relief, where the total amount sought is less than ten thousand U.S. Dollars ($10,000.00 USD), either EdCaliber or You may elect at any point in or during a dispute or proceeding to resolve the claim through binding non-appearance-based arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

(c)    Jurisdiction

You agree that any action at law or in equity arising out of or relating to these Terms or EdCaliber will be filed only in the state or federal courts in and for Santa Clara County, California, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, except as provided in Section 16.3(b) regarding arbitration. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business.

(d)    Improperly Filed Claims

All claims you bring against EdCaliber must be resolved in accordance with this Section 16.3. All claims filed or brought contrary to this Section 16.3 shall be considered improperly filed. Should either party file a claim contrary to this Section 16.3, the other party may recover attorneys’ fees and costs up to one thousand U.S. Dollars ($1,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.

16.4.    Severability

If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

16.5.    Assignment

These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by EdCaliber without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.

16.6.    Survival

Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections 6 through 16.

16.7.    Headings

The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

16.8.    Entire Agreement

These Terms, the Privacy Policy and Guidelines constitute the entire agreement between You and EdCaliber relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms, Privacy Policy or Guidelines made by EdCaliber as set forth in Section 4 above.

16.9.    Claims

YOU AND EDCALIBER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE EDCALIBER SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

16.10. Disclosures

The EdCaliber Site is hosted in the United States, and the services provided hereunder are offered by EdCaliber, which is owned and operated by Performio Solutions, Inc.: 2828 SW Corbett Avenue, Suite 113, Portland, OR 97201; support@edcaliber.com; (800) 795-1987.