TERMS OF USE AGREEMENT
Date of Last Revision: February 24, 2021
1. Acceptance of the Terms and Conditions.
1.1. Fishtank Learning, Inc. (“Fishtank Learning” “we,” “us” or “our”), provides and makes available the website at www.fishtanklearning.org (the “Website”). which provides teachers with the curriculum and resources they need to engage, challenge and inspire their students. Fishtank Learning curriculum materials have been developed and curated by expert teachers and tested and refined in classrooms over many years.
All use of the Website is subject to the terms and conditions contained in this Terms of Use Agreement (as amended from time to time, the “Agreement”). Please read this Agreement carefully. By accessing, browsing, or otherwise using the Website, you acknowledge that you have read, understood, and agree to be bound by this Agreement. If you do not accept the terms and conditions of this Agreement, you shall not access, browse, or use the Website.
1.2. You understand and agree that we may update or change this Agreement at any time without prior notice to you. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. You may read a current, effective copy of this Agreement at any time by selecting the “Terms of Use” link on the Website. You should periodically visit this page to review the current Terms of Use so you are aware of revisions to which you are bound. Your continued use of the Website and any services provided through the Website after the date any such changes become effective constitutes your agreement to this Agreement. By using the Website and any services provided through the Website, you agree to these Terms of Use. If any change to this Agreement is not acceptable to you, your sole remedy is to cease accessing, browsing, and otherwise using the Website.
1.3. Your access to and use of the Website is also subject to the Website’s Privacy Policy, located here (“Privacy Policy”). In addition, when using certain Fishtank Learning services or applications, you will be subject to any additional applicable terms posted in connection with such services or applications, all such terms and conditions of which are hereby incorporated by reference.
2. Access and Use of the Website.
2.1 You may be required to register with Fishtank Learning in order to access and use certain features of the Website. If you choose to register for the Website, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Website’s registration form. Registration data and certain other information about you are governed by our Privacy Policy. If you are under 13 years of age, you are not authorized to use the Website, with or without registering. In addition, if you are under 18 years old, you may use the Website, with or without registering, only with the approval of your parent or guardian.
2.2 You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Fishtank Learning of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Website. Fishtank Learning will not be liable for any loss or damage arising from your failure to comply with this section.
2.3 Fishtank Learning reserves the right in its sole discretion and at any time to modify, suspend or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. You agree that Fishtank Learning will not be liable to you or to any third party for any modification, suspension or discontinuance of the Website.
2.4 The Website includes certain content and services that are available via a mobile device. To the extent you access the Website through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply.
3. Conditions of Use.
3.1 To the extent the Website or any portion thereof is made available for any fee, you will be required to pay all applicable fees as set forth on the Website. You represent and warrant to Fishtank Learning that such information is true and that you are authorized to make such payments. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If you dispute any charges you must let Fishtank Learning know within thirty (30) days after the date that Fishtank Learning charges you. We reserve the right to change Fishtank Learning’s prices. If Fishtank Learning does change prices, Fishtank Learning will provide notice of the change on the Website or via email to you, at Fishtank Learning’s option, at least fifteen (15) days before the change is to take effect. Your continued use of the Website after the price change becomes effective constitutes your agreement to pay the changed amount.
3.2 Unless otherwise expressly authorized herein or in the Website, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Website, use of the Website, or access to the Website. The Website is for your personal use.
3.3 You agree not to: (a) take any action that imposes an unreasonable load on the Website’s infrastructure, (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any activity being conducted on the Website, (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Website, (d) delete or alter any material posted on the Website by Fishtank Learning or any other person or entity, or (e) frame or link to any of the materials or information available on the Website.
3.4 You may be able to upload, post or share content (including comments) or other materials to or on the Website (collectively, “User Content”). When doing so, it is your responsibility to comply with all applicable laws. You shall not upload to, distribute or otherwise publish on the Website any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal User Content. You may have the option to post comments in an anonymized way. Please note, however, that Website administrators may be able to identify which user has posted a specific comment. You agree that you will not threaten or verbally abuse other users, use defamatory language, or deliberately disrupt discussions with “spam.” Furthermore, when uploading, posting or sharing User Content, you shall not use defamatory, discriminatory or otherwise abusive language against Fishtank Learning or against any natural or legal person, whether a user or not. Any such behavior or other noncompliance with the obligations set out herein may result in an immediate and permanent ban from the Website and suspension of access to Content (paid or otherwise). Fishtank Learning reserves the right to not display, or to delete, move, or edit comments or other User Content that Fishtank Learning, in its sole discretion, deems abusive, defamatory, obscene, inappropriate, in violation of copyright or trademark laws, or otherwise unacceptable. By uploading, posting or sharing User Content on or through the Website, you are consenting to its display and publication on the Website and for related online and offline promotional uses. You represent and warrant that no materials of any kind submitted through your account will (a) violate or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights; or (b) contain libelous or otherwise unlawful material. Any information submitted or provided by you to the Website might be publicly accessible. Important and private information should be protected by you. Fishtank Learning is not liable for protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use.
4. Intellectual Property Rights.
4.1 The Website contains material, including but not limited to software, text, graphics, videos, and images (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third parties. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy, or display the Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy we permit you to make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other web site or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Website shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
Notwithstanding the foregoing or anything to the contrary in this Agreement and unless otherwise noted, but subject to our absolute reservation of rights related to our Fishtank Learning Trademarks in accordance with Section 4.2, the free standards-based teaching curriculum made available at fishtanklearning.org is our copyrighted content, which we make available to you pursuant to the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license. For the avoidance of doubt, the previous sentence does not apply to content made available via a Fishtank Plus subscription.
4.2 The trademarks, service marks, and logos of Fishtank Learning (the “Fishtank Learning Trademarks”) used and displayed on the Website are registered and unregistered trademarks or service marks of Fishtank Learning. Other company, product, and service names located on the Website may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the Fishtank Learning Trademarks, the “Trademarks”). Nothing on the Website or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Website without the prior written consent of Fishtank Learning specific to each such use. The Trademarks may not be used to disparage Fishtank Learning or the applicable third party, Fishtank Learning’s or the third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademark as part of a link to or from any website is prohibited without Fishtank Learning’s prior written consent. All goodwill generated from the use of any Fishtank Learning Trademark shall inure to Fishtank Learning’s benefit.
4.3 Certain elements of the Website are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by Section 2.1 of the Agreement. None of the Website Content may be retransmitted without the express written consent from Fishtank Learning for each and every instance.
4.4 You represent and warrant that you own all right, title and interest in and to your User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Fishtank Learning and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Website or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Website (“Submissions”), provided by you to Fishtank Learning are non-confidential and Fishtank Learning will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Fishtank Learning may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Fishtank Learning, its users and the public. You understand that the technical processing and transmission of the Website, including your User Content, may involve (y) transmissions over various networks; and (z) changes to conform and adapt to technical requirements of connecting networks or devices.
4.5 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. If you believe in good faith that materials hosted by Fishtank Learning or on other pages of the Website infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA (see www.loc.gov/copyright for details). Notices and counter notices with respect to the Website should be sent to Fishtank Learning at:
By Mail:
Fishtank Learning
769 Centre Street, Suite 208
Jamaica Plain, MA 02130
By Email:
[email protected]
5. Third-Party Websites.
5.1 The Website contain links or other access to third-party web sites and other resources on the Internet (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others unless we specifically note that such External Sites feature our Content. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites.
5.2 We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
6. Limitation of Liability and Disclaimer of Warranties.
6.1 FISHTANK LEARNING, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “FISHTANK LEARNING PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY. THE FISHTANK LEARNING PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE WEBSITE AND THE CONTENT AT YOUR OWN RISK.
THE FISHTANK LEARNING PARTIES DO NOT WARRANT THAT THE WEBSITE WILL OPERATE ERROR FREE OR THAT THE WEB SITES, THEIR SERVER(S), OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE WEBSITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO FISHTANK LEARNING PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS. THE FISHTANK LEARNING PARTIES ASSUME NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE WEBSITE (OR RELATED SERVICES) OR YOUR DOWNLOADING OF ANY MATERIALS, DRAWINGS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE WEBSITE.
THE WEBSITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE FISHTANK LEARNING PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
6.2 IN NO EVENT SHALL ANY FISHTANK LEARNING PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE WEBSITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH FISHTANK LEARNING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE FISHTANK LEARNING PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6.4 Without limiting anything set out above, you hereby release each of the Fishtank Learning Parties from all damages, liabilities, claims, actions, demands and costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with this Terms of Use Agreement, the Privacy Policy and/or any use by you of the Website. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, and that if known by him or her, would have materially affected his settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
7. Indemnification.
7.1 You agree to defend, indemnify, and hold harmless the Fishtank Learning Parties from and against any claims, actions, demands, losses, liabilities or expenses (including, without limitation, reasonable legal and accounting fees) made against Fishtank Learning by any third party due to or arising out of or in connection with or resulting from: (a) your breach of this Agreement; (b) your access to, use or misuse of the Content or Website, including any data or content transmitted or received by you; (c) your connection to the services provided hereunder; (d) your violation of any rights of another, including without limitation any right of privacy, right of publicity or intellectual property rights; (e) your violation of applicable law; or (f) any other party’s access to and use of the Website with your unique username, password, or other appropriate security code. Fishtank Learning shall provide notice to you of any such claim, suit, or proceeding. Fishtank Learning reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Fishtank Learning’s defense of such matter.
8. Term and Termination of Agreement.
8.1 This Agreement shall be effective as of the date you first access, download or use any of the services or information on the Website and shall remain in effect for so long as you access, download or use any such services or information, or until terminated by Fishtank Learning as provided below.
8.2 Fishtank Learning reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Website or the Content at any time and for any reason without prior notice or liability. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Website and services, may be referred to appropriate law enforcement authorities. You agree that any termination of your access to the Website under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Fishtank Learning may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such account, files or the Website. Further, you agree that Fishtank Learning will not be liable to you or any third party for any termination of your access to the Website.
8.3 Sections 2 (Access and Use of the Website), 6 (Limitation of Liability and Warranty), 7 (Indemnification), 8 (Termination of the Agreement), 13 (Your Privacy) and 14 (Miscellaneous) shall survive the termination of this Agreement.
9. User Must Comply with Applicable Laws.
9.1 Fishtank Learning is located in Massachusetts, and the Website is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Website or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
9.2 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
10. User Disputes.
10.1 You agree that you are solely responsible for your interactions with any other user in connection with the Website and Fishtank Learning will have no liability or responsibility with respect thereto. Fishtank Learning reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Website.
11. U.S. Government Restricted Rights.
11.1 The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the United States Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Website or Content by the United States Government constitutes acknowledgement of our proprietary rights in the Website and Content.
12. Notice to California Users.
12.1 Under California Civil Code Section 1789.3, users of the Website from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at 1660 Soldiers Field Road, Brighton, MA 02135 or at [email protected].
13. Your Privacy.
13.1 We respect the privacy of the visitors to and users of our Website. For details, please see our Privacy Policy. By using or accessing the Website, you consent to our collection and use of personal data as outlined therein.
14. Miscellaneous.
14.1 This Agreement is governed by the internal substantive laws of the Commonwealth of Massachusetts, without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Boston in the Commonwealth of Massachusetts. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Failure of Fishtank Learning to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against Fishtank Learning unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Fishtank Learning and you, this Agreement constitutes the entire Agreement between you and Fishtank Learning with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
15. Questions? Concerns? Suggestions?
15.1 Please contact us at 769 Centre Street, Suite 208 Jamaica Plain, MA 02130 or at [email protected] to report any violations of this Agreement or to pose any questions regarding this Agreement or the Website.