TERMS OF SERVICE

 

Effective Date:  _______________, 2021

 

Thank you for your interest in using the online services operated by Powered By Data, LLC, d/b/a Data Literacy (hereafter referred to as “Data Literacy,” “we,” “us,” or “our”). These Terms of Service govern your use of online and/or mobile services, websites, and software provided on or in connection with www.DataLiteracy.com (collectively, the “Service”) which may be offered through (i) the Data Literacy website located at www.DataLiteracy.com (the “Website”), (ii) mobile applications associated with the Website, and/or (iii) any other Data Literacy website, app, or online service which links to these Terms of Service.

These terms of service, as well as the conditions, notices, and guidelines provided by Data Literacy or posted on the Website (collectively, the “Terms”) govern your use of the Service and also describe your rights and responsibilities and what you can expect from your use of the Service. By accessing, using, installing, purchasing, or clicking or checking a button marked “I agree” or something similar, you acknowledge that you have read, understood, and agree to be bound by these Terms and to the collection and use of your information as set forth in our Privacy Policy, whether or not you are a registered user of the Service. If you do not agree with the Terms, you are prohibited from accessing the Service and must immediately discontinue using the Service. If you are using the Service as a member of an organization and that organization has a separate contract in effect with us, the terms of that contract will govern your use of the Service. You may use the Service only in compliance with these Terms and only if you have the power to form a contract with Data Literacy and are not barred under any applicable laws from doing so.

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE SEE SECTION 13, BELOW, FOR MORE INFORMATION.

1. SERVICE DESCRIPTION

The Service is an online, on-demand learning management platform that helps people learn the language of data by providing cost-effective instruction, training, and certification programs focused on demystifying data, while making the learning experience fun and enjoyable.

2. CHANGES TO THESE TERMS

Data Literacy reserves the right to add, delete, and/or modify any of the terms and conditions contained in these Terms at any time and in its sole discretion by posting a change notice on the Service. In the event of substantive changes to these Terms, you may be notified by email of the changes. If any modification is unacceptable to you, you should immediately cease use of the Service. Your continued use of the Service following a notice of a change in the Terms in the Service or the Website will constitute your binding acceptance of the changes.

 

3. REGISTRATION

To obtain access to the Service beyond navigating the Website, you may be required to obtain an account with Data Literacy by registering or subscribing to the Service. During registration you will be asked to provide us with a username and email address, and to create a password. You may also be asked for your contact information (e.g., your name, address, and/or phone number) and certain financial information, such as a valid credit card number and expiration date. All registration information you supply must be complete and accurate. You are required to maintain and update this information to ensure completeness and accuracy. You understand and acknowledge that you may not share your account credentials with anyone, that you alone are responsible for maintaining the confidentiality of your account and its password, that you are fully responsible for all activities that occur under your account, and that your account is for your personal use only. We are not be responsible for any loss or damage arising from any unauthorized use of your account. You agree to notify Data Literacy immediately upon discovery of any unauthorized use of your password or account or any other breach of security.

 

4. ACCESS TO THE SERVICE

4.1 License

Data Literacy grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to access and use the Service from servers operated by Data Literacy for your own personal use.

4.2 Updates

Data Literacy may provide to you, in its sole discretion, from time to time, scheduled or unscheduled bug fixes, changes, corrections, modifications, and updates to the Service (“Updates”) in the same manner as provided to other users subscribed to the Service during the Term. Data Literacy reserves the right to add or remove any feature or function and suspend or stop the Service.

4.3 Feedback

By sending or submitting messages to Data Literacy, including but not limited to images, feedback, suggestions, ideas, or any other feedback you have generated (collectively, the “Feedback”), you automatically grant, and you represent and warrant that you have the right to grant, to Data Literacy an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, publicly perform, publicly display, distribute, sublicense, prepare derivative works of, or incorporate into other works or the Service the Feedback.

5. PERMISSIBLE USE OF THE SERVICES

You may only use the Service for personal educational purposes and as expressly permitted by Data Literacy. The Service is subject to applicable U.S. laws, including export laws and regulations. You must comply with all domestic and international laws and regulations that apply to the Service. Without limiting the foregoing, you agree that you will not do any of the following:

(1) Use any robot, spider, script, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithm or methodology to access, acquire, copy or monitor the Service or a portion of the Service without Data Literacy’ prior written consent, which consent may be withheld for any reason;

(2) Use the Service in any manner that could damage, disable, overburden, disrupt, or impair the Service of any Data Literacy server, the network(s) connected to the Service or any Data Literacy server, or interfere with any other party’s use and enjoyment of the Service;

(3) Disobey any applicable policies or regulations of networks connected to the Service;

(4) Modify, adapt, translate, copy, or reverse engineer any feature, graphic, content, function, or other aspect of the Service;

(5) Frame or reformat the Service in any way;

(6) Register to use the Service or create an account in the Service using any automated means or under false pretenses, such as to obtain competitive intelligence;

(7) Upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation, commercial or otherwise;

(8) Upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another’s right of privacy or publicity;

(9) Create a false identity for the purpose of misleading others or impersonate any person or entity, including, without limitation, any Data Literacy representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(10) Delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;

(11) Use or attempt to use the Service for any unauthorized, fraudulent, or malicious purpose or for any purpose other than your personal educational purposes; and

(12) Use or attempt to use the Service in any manner that violates any local, state, national, or international law.

6. SUPPORT SERVICES

Depending on the portion of Service you subscribe to, Data Literacy may provide training or other support services (“Support Services”) in connection with the Service, as set forth in the particularized description of such portion of the Service. By selecting a portion of the Service that includes Support Services, you agree that you will work with us in good faith in order to effectuate such Support Services (e.g., coordinating with us to determine the most effective time for training).

7. THIRD PARTY SERVICES

The Service may now or in the future allow you to link, synchronize, select, input, upload, and share data and information from the Internet and other third-party software platforms and systems (“Third-Party Services”). By installing Third Party Services and/or accessing Third Party Services using the Service, you hereby represent and warrant that you have the lawful right to install and access such Third-Party Services. You acknowledge that Data Literacy is not responsible for any Third-Party Services.

8. OWNERSHIP

8.1 Content

Data Literacy and its licensors own and shall retain all rights, title, and interest in and to the Service, all modifications and improvements thereto (including any made by or with your participation), all Feedback, and all intellectual property rights therein (collectively, “Data Literacy Property”). You hereby irrevocably and unconditionally assign any and all rights you may have in Data Literacy Property to us. You further covenant not to challenge Data Literacy’ exclusive ownership of Data Literacy Property or directly or indirectly assert any rights inconsistent with Data Literacy’ exclusive ownership of Data Literacy Property.

8.2 Your Information

You hereby grant Data Literacy the right to transmit, use, and disclose data and information that you provide to Data Literacy solely to the extent necessary to provide the Service, as otherwise permitted by these Terms, to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Data Literacy believes in good faith requires Data Literacy to disclose such data and information to assist in preventing death or serious bodily injury to any person.

9. SECURITY

Data Literacy acknowledges and agrees that its security procedures and systems, including those related to the Service and hosting services, will align with industry standards. You acknowledge that Data Literacy may provide hosting services for the Service through a third party host under an agreement with Data Literacy. Data Literacy agrees that any and all agreements between Data Literacy and its third party service providers involving your data or information shall include provisions which legally bind such third party service provider to confidentiality, data privacy, and security provisions at least as protective as these Terms.

10. FEES AND EXPENSES

If you elect to purchase any paid component of the Service, such as enrolling in any one of our available lesson bundles, you agree to pay all fees and charges associated with such enrollment. All such fees and charges (including any taxes and late fees, as applicable) will be charged to the credit card you provide to us during the checkout process. By submitting your credit card information to Data Literacy, you are authorizing Data Literacy to charge your credit card the fees associated with the lessons you have selected. Data Literacy will use secure socket layer (SSL) encryption that permits your sensitive payment information to be securely collected and transmitted.

11. WARRANTY DISCLAIMER

DATA LITERACY PROVIDES THE WEBSITE AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. DATA LITERACY DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE SERVICE OR THEIR USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. DATA LITERACY MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.

IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT, OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF TAX, LEGAL, OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.

12. LIMITATION OF LIABILITY

DATA LITERACY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE SERVICE OR THESE TERMS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY’S REPRESENTATIONS AND WARRANTIES UNDER THESE TERMS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TERMS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT DIRECTLY PAID BY YOU TO USE THE SERVICES DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY.

13. INDEMNIFICATION

You agree to indemnify and hold harmless Data Literacy, its directors, officers, employees, agents, and licensors with respect to any damage, loss, expense, suit, or claim, including attorneys’ fees and costs (collectively, a “Claim”) arising out of your breach of these Terms, including but not limited to, any infringement by you of the intellectual property of any third party, or any third party Claim arising out of your use or misuse of the Service. If you are required to indemnify Data Literacy under this section, Data Literacy will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Data Literacy’s express written permission.

14. DISPUTE RESOLUTION

14.1 Mandatory Arbitration

Any controversy, claim or dispute of whatever nature arising between the parties arising out of or relating to these Terms, or any agreement in which they are incorporated, or the breach, termination, enforceability, scope, or validity thereof, whether such claim existed prior to or arises on or after the execution date (a “Dispute”), will be resolved by binding arbitration in King County, Washington, U.S.A. or other location agreed upon by Data Literacy. The prevailing party in any such action will be entitled to recover all costs, including reasonable attorneys’ fees, at trial and on any appeal or petition for review, incurred in enforcing the terms of these Terms, or any other agreement including the provisions of these Terms.

14.2 Procedure

Neither party will commence an arbitration proceeding pursuant to the provisions set forth below unless that party first gives a written notice (a “Dispute Notice”) to the other party setting forth the nature of the Dispute. You agree to attempt in good faith to resolve any Dispute through discussions with Data Literacy.

If the Dispute has not been resolved as provided above, within thirty (30) days after receipt of the Dispute Notice, or if a party fails to participate in those discussions, then the Dispute will be submitted to JAMS (www.jamsadr.com) to be determined by binding arbitration. The arbitration will be conducted in accordance with the JAMS Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules or pursuant to the JAMS Streamlined Arbitration Rules and Procedures. The Dispute will be determined by one arbitrator, except that if the Dispute involves an amount in excess of $1,000,000 (exclusive of interest and costs), three arbitrators will be appointed.

Persons eligible to serve as arbitrators need not be members of JAMS, but they must have professional credentials demonstrating the ability to handle a matter of the scope and complexity of the Dispute. The arbitrator(s) will base the award on the applicable law and judicial precedent that would apply if the Dispute were decided by a United States District Court Judge and the arbitrator(s) will have no authority to render an award, which is inconsistent therewith. The award must be in writing and include the findings of fact and conclusions of law upon which it is based.

Unless the parties agree otherwise, discovery will be limited to an exchange of directly relevant documents. Depositions will not be taken except as needed in lieu of a live appearance or upon mutual agreement of the parties. The arbitrator(s) will resolve any discovery disputes. The arbitrator(s) and counsel of record will have the power of subpoena as provided by law. The parties knowingly and voluntarily waive their rights to have any Dispute tried and adjudicated by a judge or a jury.

The arbitration will be governed by the substantive laws of the State of Washington, without regard to conflicts-of-law rules, and the Federal Arbitration Act (Title 9, U.S. Code). Judgment upon the award rendered may be entered in any court having jurisdiction. Notwithstanding the foregoing, upon the application by either party to a court for an order confirming, modifying or vacating the award, the court will have the power to review whether, as a matter of law based on the findings of fact determined by the arbitrator(s), the award should be confirmed, modified, or vacated in order to correct any errors of law made by the arbitrator(s). In order to effectuate such judicial review limited to issues of law, the parties agree (and will stipulate to the court) that the findings of fact made by the arbitrator(s) will be final and binding on the parties and will serve as the facts to be submitted to and relied upon by the court in determining the extent to which the award should be confirmed, modified, or vacated.

Except as otherwise required by law, the parties and the arbitrator(s) agree to keep confidential and not disclose to third parties any information or documents obtained in connection with the arbitration process, including the resolution of the Dispute. If either party fails to proceed with arbitration as provided in these Terms, or unsuccessfully seeks to stay the arbitration, or fails to comply with the arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party will be entitled to be awarded costs, including reasonable attorney’s fees, paid or incurred in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.

14.3 Damages Waiver

Each party hereby waives any and all rights it may have to receive exemplary or punitive damages with respect to any claim it may have against the other party, it being agreed that no party will be entitled to receive money damages in excess of its actual compensatory damages, notwithstanding any contrary provision contained in these Terms or otherwise. Notwithstanding any contrary provisions in this Section 12, the parties recognize that certain business relationships could give rise to the need for one or more of the parties to seek emergency, provisional or summary relief to repossess and sell or otherwise dispose of goods, equipment and/or fixtures, to prevent the sale or transfer of goods, equipment and/or fixtures, to protect real or personal property from injury, or to obtain possession of real estate and terminate leasehold interests, and for temporary injunctive relief. Immediately following the issuance of any such relief, the parties agree to the stay of any judicial proceedings pending mediation or arbitration of all underlying claims between the parties.

14.4 Class Action Waiver

Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action, unless both you and Data Literacy specifically agree to do so in writing following initiation of an action. This provision is not applicable to the extent such waiver is prohibited by law.

14.5 Right to Opt Out of Class Action Waiver and Binding Arbitration

If you do not wish to be bound by the class action waiver or individual arbitration provisions in this section, you must notify Data Literacy in writing within 30 days of the date that you accept these terms, unless the law requires a longer period.

Your written notification must be sent to Attn: Legal, Powered By Data, LLC, 500 108th Avenue N.E., Suite 1100,

Bellevue, Washington, 98004, or via email to contact@dataliteracy.com, with “Arbitration and Class Action Waiver” as the subject line and must include: (i) your name, (ii) your address, (iii) the phone number, and (iv) a clear statement that you do not wish to resolve disputes with Data Literacy through individual arbitration and/or a clear statement that you would like to opt out of the above class action waiver.

15. SUSPENSION, TERMINATION OR CANCELLATION

Data Literacy reserves the right in its sole and complete discretion to suspend, limit your access to, or terminate your use of the Service at any time, upon the occurrence of any of the following: (i) violation or suspected violation of these Terms or your payment obligations hereunder; (ii) use of the Service in a manner determined by Data Literacy to be harmful or detrimental to or give rise to legal liability to Data Literacy or any of its customers; (iii) planned or unplanned downtime or other technical problems or outages. In addition, Data Literacy may, in its sole and complete discretion, terminate your account with us if you are not a subscriber to one of our paid monthly or annual plans and (i) do not engage in any activity in your account within thirty (30) days after becoming a Registered User, or (ii) do not engage in any activity in your account for any period of 120 consecutive days. Data Literacy will use commercially reasonable efforts to notify you of any suspension or termination through the Service. You acknowledge and understand that you may not be able to access your data and information if your access to the Service is suspended or terminated and Data Literacy has no obligation to maintain your data and information after such suspension or termination.

16. NOTICES

All notices required or permitted to be given under these Terms will be in writing and delivered to the other party by any of the following methods: (i) U.S. Mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Data Literacy, you must mail it to Attn: Legal, Powered By Data, LLC, 500 108th Avenue N.E., Suite 1100, Bellevue, Washington, 98004, or send it via email to contact@dataliteracy.com.

If Data Literacy provides notice to you, Data Literacy will use the contact information provided by you to Data Literacy. All notices will be deemed received as follows: (i) if by delivery by U.S. Mail, three (3) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other non-delivery notice is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy the requirement.

17. USE OF THIRD PARTY SERVICES BY DATA LITERACY

Data Literacy may use third parties to provide certain services accessible through the Service (such as payment processing). Data Literacy does not control those third parties or the services provided, and you agree that Data Literacy will not be liable to you in any way for your use of such services or any charges incurred by you while using such services. These third parties may have their own terms of service and other polices. When you use those services, you must comply with such terms and policies, as well as these Terms. If any such terms or policies conflict with these Terms, or other Data Literacy agreements or policies, you must comply with these Terms and any other Data Literacy agreements, or policies, as applicable.

18. COPYRIGHT INFRINGEMENT

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. In appropriate circumstances and at Data Literacy’ discretion, Data Literacy may terminate your account if you become a repeat copyright infringer. If you believe in good faith that any content made available in connection with the Service infringes your copyright, you (or your agent) may send us a notice requesting that the content be removed, or access to it blocked. Notices and counter notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.copyright.gov for details).

Currently, an effective notice must contain the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works at that Service; (iii) identification of the claimed infringing material or subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your address, telephone number, and, if available, your email address; (v) a statement that you have a good faith belief that use of the copyrighted material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Notices and counter notices with respect to the Service should be sent to Attn: Legal, Powered By Data, LLC, 500 108th Avenue N.E., Suite 1100, Bellevue, Washington, 98004, or via email to contact@dataliteracy.com.

19. MISCELLANEOUS

These Terms will be binding upon each party hereto and its successors and permitted assigns and governed by and construed in accordance with the laws of the State of Washington, without reference to conflict of law principles. These Terms (including all of the policies and other agreements described in these Terms, which are incorporated herein by this reference) contain all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power, or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise of any such right, power, or privilege. You and Data Literacy are independent entities, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms. The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision of these Terms, all of which will remain in full force and effect. The headings used throughout these Terms are merely descriptive and not operative and have no legal or contractual effect.

20. COMMENTS AND QUESTIONS

If you have any comments or questions, you may address them to Powered By Data, LLC, 500 108th Avenue N.E., Suite 1100, Bellevue, Washington, 98004, or via email to contact@dataliteracy.com.