Effective Date July 1, 2023 (archived version)
1. This is a Binding Agreement. YOU ARE WAIVING RIGHTS.
OUR TERMS CONTAIN A BINDING ARBITRATION PROVISION, A WAIVER OF CLASS-ACTION RIGHTS, AND A WAIVER OF THE RIGHT TO A JURY TRIAL. THESE AFFECT YOUR LEGAL RIGHTS. EITHER YOU OR WE MAY ENFORCE THIS AGREEMENT.
GOVERNMENT ENTITIES MAY SIGN OUR ENTITY TERMS (FILLABLE ADOBE FORM ATTACHED AT THE BOTTOM OF THIS PAGE) AS AN ALTERNATIVE TO THESE GENERAL TERMS.
1.1 Find the terms that apply to you
The Notices and Terms are listed in the order of precedence. That means that if there is a conflict between the terms of one or more documents, the term in the document on the list with the lower numeral will prevail over the terms with a higher numeral.
- Benefit from our Kid-Friendly Privacy Notice
- Student accounts are subsidiaries of Educator or Entity accounts.
1.1.2 Schools, Medical Providers, and Businesses purchasing as an "Entity" are bound by
- Any separately signed privacy agreement;
- Any separately negotiated and signed service and/or software agreement (such as our Entity Terms);
- The Boom Learning Privacy Notices;
- The Boom Learning Terms of Service; and
- Any School-provided Purchase Order Terms and Conditions.
1.1.3 Educators purchasing as an individual are bound by
- The Entity terms if your district has any Entity agreement,
- The Boom Learning Privacy Notices, and
- The Boom Learning Terms of Service.
1.1.4 Public Publishing Authors (Sellers) are bound by
- The Public Author Terms of Service,
- The Boom Learning Privacy Notices, and
- The Boom Learning Terms of Service.
If you do not accept all the terms, do not use Boom Learning.
We will notify you via our newsletter service if we make material changes to the terms. You will also be required to accept the terms anew. Reorganization of components between cross-referenced documents is not a material change. The addition of detail previously stated in our FAQs that does not alter fundamental commitments is not a material change. If any term is held unlawful, void, or unenforceable for any reason, it will be considered modified so that its purpose and the remaining terms can be lawfully enforced. You must accept the changed terms to continue as a member. If you do not wish to accept the new or revised terms, you must cancel your membership and/or withdraw your products.
1.3. Who we are and how to reach us
We (also “our” and “us”) are Omega Labs Inc. dba Boom Learning and our successors, assigns, and subsidiaries. Legal notices must be sent to 9805 NE 116th St Suite 7198, Kirkland WA 98034 or email@example.com.
1.4 Who you are
"You” means the adult Educator, Entity, or Public Author who creates an account with us. We act on your behalf to process data for your educational purposes. "Entity" includes schools, hospitals, therapy practices, and educational services businesses (whether for profit or non-profit).
1.4.1 You promise that you are an adult and will comply with rules for interacting with minors.
Boom Learning is marketed and directed to adult users for use with students, who may be minors. Adults create accounts for students under their charge. When you accept these terms, you are saying you are an adult and not a minor. See our Privacy Notice for rules regarding your use of Boom Learning with minors.
1.4.2 You agree that we can verify what you tell us.
You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify account information you provide. This includes your authorization to agree to the terms and your identity.
1.4.3 Authorizations and account ownership
You represent and warrant that you have permission and authorization, as required by law or policy, from your school and affected parents, guardians, and students, to bind students and your school to the terms. If you purchase an account with out-of-pocket funds for use at an entity with students, Boom Learning agrees that the school is a beneficiary of the terms. If you are an entity, a person associated with your account must have authority to bind the entity to this Agreement.
1.5 What we are
- gives you a platform at wow.boomlearning.com for creating interactive, self-grading teaching resources (“Boom Cards“), including the ability to incorporate “assets“, such as images, artwork, fonts, video, and sound, into those Boom Cards, (the creation platform is called the “Studio“);
- offers Public Authors tools for selling and sharing Boom Cards on other marketplaces (“External Marketplaces“);
- includes a marketplace for obtaining and listing Boom Cards and assets (the “Store“);
- provides educator tools for managing and assigning Boom Cards (“Classes“) and reviewing student performance (“Reports“); and
- offers web apps (https://boom.cards) and native apps (Amazon, the App Store, and Google Play) for playing Boom Cards. Mobile apps are also subject to the rules and agreements of their respective app stores.
2. Dispute Resolution including ARBITRATION
2.1 Negotiations first
If we have a falling out, before calling in the big guns (aka arbitration), you and we shall attempt in good faith to resolve all disputes by negotiation between representatives with the authority to settle the controversy.
2.2 Mediation or Copyright Claims Board second
If negotiations do not resolve the matter and the matter falls within the jurisdiction of the Copyright Claims Board, the matter will be referred to the Copyright Claims Board for resolution.
If negotiations do not resolve the matter and the total amount in controversy is less than $100,000, the matter will proceed to mediation to be conducted online through JAMSconnect. If mediation is unsuccessful in resolving the dispute or the matter has a total value greater than $100,000, then you and we will proceed to the arbitration procedures in the next paragraph.
2.3 Arbitration and Class Action Waiver
Government Agencies must sign the Entity Terms to opt out of Arbitration, change the choice of law, and change venue.
If we get to the stage of arbitration, any dispute, controversy, or claim arising out of or relating to these terms or to your purchase or use of Boom Cards or Boom Learning will be referred to JAMS in King County, Washington, in accordance with JAMS’ Streamlined Arbitration Rules and Procedures. JAMS will determine the final outcome of the dispute. If you are situated outside of the United States JAMS will use the JAMS International Arbitration Rules. By any, we really mean any, including disputes over whether we even formed an agreement, how to interpret our agreement, whether or how there was a breach, whether or how there was a termination, and even whether or not claims are arbitrable.
You and we agree that the laws applied will be the laws of the State of Washington. You and we further agree that arbitration must be on an individual basis. This means neither you nor we may join or consolidate claims in arbitration by or against other purchasers or users of Boom Learning or litigate in court or arbitrate any claims as a representative or member of a class.
2.4 You and we have 180 calendar days to bring a dispute
You and we agree that any arbitration initiated hereunder must be brought no later than one hundred and eighty (180) calendar days after the event causing the dispute first occurred unless the matter qualifies for mediation as described above, in which case the initiation of mediation shall toll (in lay terms "pause the running of") the limitations period from the date of initiation of mediation through the date of the completion of the mediation.
3. Acceptable Use Policy
3.1 Key acceptable use policy requirements
We require all Boom Learning members to follow these rules. We do our best to provide the information you need to follow them. We will tell you if you make a mistake. We expect you to fix your mistake if we tell you that you need to. You must:
- only disclose the private information of others that you have a right to disclose and only to authorized persons;
- only incorporate the intellectual property of others into materials you make or sell with permission;
- give credit where you are required to give credit;
- comply with all applicable laws that apply;
- access Boom Learning only through pages we make publicly available using your authorized login credentials;
- ensure messages and electronic instructions delivered to us do not include malicious code or otherwise attack our systems;
- create, select, share, and deliver to students materials that distinguish fact from opinion and that are factually accurate (supported by verifiable and substantial evidence);
- never include any material that contains advertising or marketing content in materials you create that are intended for delivery to K-12 students; and
- review all materials created, selected, shared, and delivered to students to ensure they do not contain materials that are biased, offensive, inappropriate, hateful, indecent, harassing, or unlawful, considered in light of the age of the students who are the intended users of the materials (as judged solely by us).
Do not engage in any conduct in any forum hosted by Boom Learning that is harassing, threatening, fraudulent, inappropriate, hateful, pornographic, defamatory, obscene, offensive, indecent, or unlawful (as judged by solely by us).
In addition to the above Acceptable Use policy, you must also conform to the Instructure Acceptable Use Policy for items used with Canvas. You must further follow any applicable Entity Acceptable Use policies.
Failure to conform to these acceptable use policies can result in your account being suspended or locked out.
3.2 Bad choices have consequences
We are not required to monitor our sites and apps. We have a right to monitor our sites and apps. We proactively edit and unpublish Boom Cards that violate our acceptable use policy. In our sole discretion, at any time, and without telling you in advance, we can
- remove content,
- suspend you,
- ban you, or
- pursue other remedies against you.
We reserve the right to provide information to third parties such as
- our authors,
- law enforcement,
- supervisory authorities,
- and attorneys general,
to enable them to pursue legal remedies against you. You agree that we will not be liable to you or any third party for any suspension or termination of your account. If we terminate your account, you will forfeit your current membership. You will not establish a new account without our permission. You will be required to pay anew to reopen an account that we have terminated.
3.3 Special rules for video
You may not embed any video in a Boom Cards deck that contains an advertisement. It is up to you to watch videos in full before embedding and ensure that no advertisements are displayed. It is up to you to update your videos if your hosting service changes its rules to add advertisements to your video. For Vimeo, you must have a premium Vimeo account so that your users do not see ads. You may not collect personally identifiable information from any user via a Vimeo link. You must turn off all marketing settings that collect information before including a Vimeo link in a deck.
3.4 Be sure you are allowed to share and have the correct rights before sharing
Creating Boom Cards for use only with your own classroom is typically a personal use. That means you may be able to claim fair use rules for teachers apply. Sharing with colleagues is a different story. Sharing will often be considered a commercial. This means that fair use may not apply.
We can require you to provide proof of a license for any element of a Boom Cards deck you have made. If you cannot provide proof of a license, we will presume you do not have a right to use the material. We have the right to modify, delete, or unpublish items. We will take these actions if you do not have sufficient rights to any element of a deck.
3.5 You can report infringement of copyrights, and we will take action.
Copyrights are rights to control when others can copy, display, perform, distribute, or make a variation of an original expressive work you create and capture. The Digital Millennium Copyright Act (DMCA) provides specific guidelines for reporting infringement of your copyrights to us. It tells us what we must do when we receive a complaint from you. If you believe your copyrights have been violated, tell us using our Notice and Procedure for Making Claims of Copyright Infringement. We will act on compliant requests. If you add patent or trademark claims to your DMCA notice, we will reject it as nonconforming. We prefer a less formal, more interactive, and more flexible approach where we agree on a message to give to teachers about allowed and disallowed use of materials. If you choose to use the DMCA, we expect you to get it right.
You can also report abuse or infringement informally by clicking Reviews and Report for the Boom Cards deck at issue.
If you want to contact us about trademark infringement, violations of our acceptable use policy, or other matters, do not send a DMCA notice. Instead, use the Report tool for the deck (found in the Reviews tab) or send a message to firstname.lastname@example.org clearly identifying your concern, your legal right to demand we act on the concern, and the actionable remedy you are requesting.
3.6 Duty to inspect
Before assigning any material, you must inspect it to ensure it is suitable for your students. If you buy a deck and then determine it is not suitable, you may request a refund. You will need to identify the deck title, deck author, and a brief statement of the issue with the deck. Refund requests must be within reasonable proximity of the purchase date (normally within two weeks). We will grant reasonable and timely refund requests. We reserve the right to refuse refunds.
Content on Boom Learning is created by authors. Those authors are solely responsible for the content they make available. The responsibility for reviewing material before assigning it is solely your responsibility. We are not responsible for the accuracy, appropriateness, lawfulness, or truthfulness of any content.
4. Talking about each other
4.1 Chat us up, with credit
Please talk about Boom Cards. Be sure to give credit where credit is due. If something is not yours, don't claim it is. If you post an image of Boom Learning or Boom Cards to any social media site available to the public, you grant Boom Learning and/or the author permission to repost that image as long as we give you credit.
4.2 Feedback and ratings
We and our authors may freely use any suggestions, ideas, or other feedback you give. Freely means without restriction and without owing you money or compensation. Ratings you give must be based on using the resource for its intended purpose.
4.3 Boom Learning names and logos
Boom Learning names and logos are the trademarks, trade names, and/or service marks of Boom Learning. Our authors’ names and logos are the trademarks, trade names, and/or service marks of our authors. You may use our names to describe us in reviews. Use of Boom Learning and Boom Cards names and logos must comply with our guidelines. For all other uses, ask for written permission from us or our authors first.
You agree that Boom Learning may excerpt and post relevant content from any blog, social media post, or other writing you make about Boom Cards and Boom Learning so long as we give you credit.
5. Payments, fees, renewals, and the like (all are in USD)
5.1 You pay all applicable charges.
Prices exclude taxes and currency exchange settlements unless stated otherwise. You are responsible for paying taxes or other charges. If your account is canceled, you must pay all charges made to your account before the cancellation was effective. Failure to provide valid payment may result in you being banned. Being banned does mean you do not have to pay what you owe.
5.2 We provide electronic receipts, invoices, and statements in USD
All monetary amounts are expressed in US dollars ("USD"), and we expect payment in USD funds. We give you electronic receipts, invoices, and statements. You will receive email receipts from the payment processor you selected. You can find a record of your purchases in My Settings. These are the only receipts, invoices, and statements we provide.
5.3 You have 180 days to tell us we made a mistake
It is your responsibility to print or save copies for your records. If we make an error on a receipt, you must report the mistake to us within 180 days after the error appeared. You agree that if you do not inform us within 180 days, you release us from all claims of liability and loss resulting from the error. You further agree that we will not be required to correct the error or provide a refund.
5.4 Purchase orders
You may use purchase orders to buy points and memberships only through our Estimate Builder.
- Minimum purchase requirements apply.
- Terms and conditions in a Purchase Order are rejected to the extent they conflict with or supersede other applicable terms as stated in Paragraph 1.1.2.
- Additional discount terms over those in the estimate are rejected.
- Net payment terms on purchase orders are accepted.
- Cover remedies are rejected.
- "Entire Agreement" clauses in purchase orders are rejected to the extent that they invalidate the other applicable terms set forth in Paragraph 1.1.2.
If you don't pay the invoice for memberships, we will downgrade memberships and remove points. Where users already have accounts with time remaining on them, and a school purchases a membership for that account, we will credit the difference either in days or points, in our sole discretion.
5.5 Points—what and why
Points are purchased in US dollars. Points can only be used to redeem Boom Cards and assets for making Boom Cards from Boom Learning. They enable transactions that would otherwise be cost-prohibitive for us to provide. If you have insufficient points in your account to check out products, you will be prompted to purchase points first. After you purchase the points, you will be directed to go back and check out the products.
We will automatically renew your account from your unspent points balance if you have not renewed when the time comes and have not downgraded to a free account. We may spend your points or enter a negative points balance to obtain satisfaction of a debt you owe us, including debts for dispute fee chargebacks.
Points are non-refundable and non-transferable. Points do not constitute a personal property right and have no value outside Boom Learning. Points have no cash value and cannot be exchanged for cash. If you delete an account or we delete a stale account that is no longer being used and the account has points in it at the time of deletion, all points are forfeit and are unrecoverable. Please read our Privacy Notice for when we delete stale accounts. We reserve the right to discontinue the availability of points at any time. If we suspect fraud or abuse regarding your points, we may cancel, suspend, or limit your ability to redeem points, and we may elect to reverse all transactions involving such points. We delete points we determine were obtained fraudulently. We may charge you for the value you obtain by fraudulently using points. Purchases of points have daily maximums.
5.6 Renewals (automatic and otherwise)
You agree that we may automatically extend or renew your account as specified below unless you downgrade your membership or request a refund of unused purchased points prior to the renewal date. Renewals work this way:
- We will email a notice that your account is expiring if you have a membership (whether paid or granted as a free promotion). We will explain how to downgrade your membership in that notice.
- The notice will state that we will automatically apply any unused points you have to extend your membership on a pro-rata basis upon expiration.
- If you are subject to extension by having a points balance, to avoid points expenditure, you must go to My Settings before the expiration date and downgrade your membership to a free tier.
We renew your account from the date it expired, not the date of the renewal. There are costs to maintaining your account even if you are not actively using it.
5.7 Upgrades, downgrades, and refunds
Downgrades and upgrades are immediate. Membership purchases are non-refundable except at our sole discretion (such as you accidentally opening and purchasing two accounts).
5.8 All sales are final.
Unless otherwise provided, all purchases and redemptions are final and nonrefundable. We decide if we will or will not issue a refund. Our decision to issue a refund for a particular customer does not oblige us to reverse redemptions to any other customer or for any other product. If we cancel or suspend your account, your right to acquire and use products stops immediately. We can only issue refunds for purchases made directly from Boom Learning. Direct all other refund requests to the site from which you made the purchase.
5.9 Contact us first to avoid chargebacks of dispute fees
You must contact us to request a refund. The best way to do this is from the Help Center when you are logged in. Please select Customer Service & Sales (including refunds) for fastest service. If you dispute a charge without contacting us or requesting a refund first, we reserve the right to charge you the dispute fee, which can be $15 to $20 per dispute. Users who abuse the dispute process will be locked out of their accounts.
When a charge is disputed, we will reclaim the purchased items (refunding decks, removing points and expiring items). If the dispute was not valid (for example, if you spent the points or continued using the membership) but is nonetheless resolved against us, you will be required to pay the chargeback before you can continue using your account. We may reclaim the dispute fee by removing points, adding a negative points balance, and/or returning redemptions until there are sufficient points to pay your fee. If the dispute is valid because you used a payment you were not authorized to use, you will be required to pay the dispute fees to regain access to your account.
6. What you can do with Boom Cards
6.1 What you can do
If you have a current account (either free or a paid membership) you can do any of the following:
- Redeem them;
- Assign them to your students or therapy clients. Fastplay Pins are available for all accounts. Other methods require a paid membership;
- Display and perform with your students or therapy or demonstrate them to others associated with your school or practice;
- Set Custom Play settings for Hyperplay and assigned decks;
- Give feedback, rate them, and contact the author;
- Print them for your students;
- Create them (subject to limits based on your account tier); and/or
- Share or transfer ones you’ve created with your team.
Boom Cards are owned by their authors. You receive the right to use them. Authors reserve the right to modify Boom Cards after purchase to correct errors and omissions.
6.3. What you can’t do with Boom Cards.
You can’t use them offline; they require a connection to the internet (wired, wireless, or cellular). You cannot export Boom Cards decks. You may not extract or attempt to extract images, fonts, video, sound, or other elements from Boom Cards using any means. Attempting to do so can result in you being banned from our system and/or subject to civil or criminal action against you.
You may not share purchased Boom Cards with others through account sharing or other methods. Don’t steal from fellow educators. You may not use Boom Cards for any commercial purpose without the author’s consent. When in doubt, ask the author.
6.4 Using “assets” (you know: images, fonts, sounds, videos, gifs, and more)
Use assets you made yourself or that you have permission to use. You can purchase assets for use from the Boom Store. You can also purchase them from a variety of other locations. If you do so, make sure that your permission allows use with Boom Cards. We take steps to prevent right click saving of images, so many artists will say “yes” that would otherwise say “no” to digital use. For your convenience, we keep a list of people who have said “yes” to Boom Cards use. Don’t use images of living people unless you have their permission (a right of publicity clearance). For dead people who have been dead less than 70 years, the question gets more complicated, and you should contact an attorney for guidance.
We reserve the right to block you from accessing assets you upload, use, or purchase, if we determine that you may not lawfully use the asset. We, in our sole discretion, will decide whether you are entitled to a refund for assets you purchased from an author on Boom Learning.
6.5 Assets purchased from the Boom Store
When you buy assets from the Boom Store, you get permission to include those assets in decks you create and to use assets included in decks with your students. You may modify assets to the extent allowed by the tools included in the Boom Learning platform. Asset authors may provide more generous terms to you. If so, their terms apply.
7.1 Account management
7.1. Accounts and memberships
You must have an account to use Boom Cards. There are free accounts and paid member accounts. All memberships are annual, pre-paid, and non-refundable. Free accounts allow you to play purchased Boom Cards using Fastplay Pins. Paid member accounts allow you a number of benefits, including the ability to track student progress based on the number of seats you purchased, create your own Boom Cards, and get special discounts. Boom Learning reserves the right to change the terms of memberships at any time at our discretion. Changes will take effect for you on renewal.
7.2 Account deletion and closure
DELETION IS IRREVERSIBLE. AGAIN, DELETION IS NOT REVERSIBLE. You must request a refund of unspent points before deleting your account (or before we delete it automatically as a stale account). Once an account is deleted, points are forfeit and non-refundable. Membership is also non-refundable.
You may add and delete students. When you delete a student, you delete the record of that student’s past work. To protect student privacy, we take you at your word when you issue a deletion instruction.
To minimize privacy risk, we delete stale accounts according to the schedule in our Privacy Notice. A teacher who deletes a school-purchased account without the permission of the school is liable to the school for the loss. Schools may authorize us or a teacher to delete a school-purchased account. We may, in our discretion, close or suspend your account at any time for any reason, with or without notice. You may close your account using Delete from My Settings at any time, without notice to us. Account closure is permanent and irreversible – decks created but not sold are permanently destroyed.
7.3 Account sharing is not allowed
Boom Cards are licensed to a single account operated by a single individual. Each individual, whether their account was purchased directly or by an entity, must have his or her own account. Use our Colleagues feature to share students with co-workers.
Fastplay pins allow you to interact with students with no tracking of student performance. Fastplay pins expire and must be regenerated once they have expired. All other assignment methods are allowed for you and the number of your students that your account tier allows. We may modify the number of students a tier is allowed at any time, at our sole discretion.
7.4 Referrals, rewards, and special offers
From time to time, we offer paid referrals and/or other special offers. You may opt in to have your information disclosed to the referring party. We are not obligated to offer rewards, referral fees, or any other special offer. We can change or discontinue any referral, reward, or special offer program at any time, at our sole discretion. We have no obligation to compensate you for giving a review, referring a customer, or otherwise spreading the word.
Parents and legal guardians may review student accounts from the student dashboard. Parents must contact the Educator if they need a password reset for a student account, to correct an error in a student record, or to request an export of student performance records. We must have authorization from the Educator or a legal authority to fulfill parent requests. Please see our Student Privacy Notice.
9. We are FERPA compliant
We are Family Education Rights and Privacy Act (FERPA) compliant. Please see our Privacy Notice. Boom Learning does not require student personally identifiable information to serve its educational purpose.
10. Data is stored in the United States
Please see our Privacy Notice for Data Exporters for details for European Economic Area, Swiss, UK, and Canadian customers.
11. First purchaser rule
We use a first-purchaser rule to determine account ownership. The first purchaser owns the account.
- If the first purchaser in an account was an individual, the account belongs to the individual.
- If the first purchaser was an Entity, the account belongs to the Entity.
The following actions will not change the ownership of an account:
- Purchasing points for an existing account. The purchase is a gift to the account owner.
- Paying for a subscription in an existing account. The purchase is a gift to the account owner.
The following actions will change the ownership of an account:
- Release by an Entity school of an account to an individual. All items in the account at the time of release are deemed gifted to the individual. Entities can reassign accounts instead of releasing them.
- Accepting an invitation from an Entity to join an Entity account is an agreement by an individual to transfer ownership of the account to the Entity.
Any attempt to seize or transfer ownership inconsistent with this section shall be null and void unless supported by a notarized statement signed by both parties stating the correct ownership of the account or a court or arbitral order.
12. Security and Breach Response
Details are in our Privacy Notice.
13. Warranties, Representations, and Indemnities
13.1 You WARRANT AND REPRESENT that you have made good choices
You warrant and represent the following:
- any and all information and products you provide to us are truthful, accurate, complete, current, and in compliance with these terms;
- any email address you provide is yours and that you have not impersonated any person or used a username or password that you are not authorized to use;
- you are fully authorized to provide the products and to authorize us to provide the products to others; and
- your products, and any site to which your products link:
- comply with all applicable laws and regulations, including those meant to prevent money laundering;
- do not infringe, misappropriate, or otherwise violate the intellectual property right of any third party;
- do not breach the rights of any person or entity, including, without limitation, rights of publicity or privacy, and are not defamatory; and
- do not and will not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; and
- do not advertise to students.
13.2 You agree to INDEMNIFY us against your poor choices
At our request, you will defend, hold harmless, and indemnify us and our directors, officers, employees, agents, affiliates, and each of their successors from and against all third-party claims, actions, demands, proceedings, damages, costs, and liabilities of any kind that arise out of or relate to
- your products;
- your use of Boom Learning or authors’ products;
- your violation of laws or applicable regulations;
- your breach of your warranties, representations, or obligations under this agreement;
- your direct communications with others, including direct communications between customers and authors; and
- other claims that arise out of your actions, products or use.
We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.
13.3 Everything is provided as is and subject to change without notice
DISCLAIMER OF WARRANTIES: Boom Learning, and the content/products found on Boom Learning, are provided “AS IS” and “AS AVAILABLE” without warranty of any kind, whether express or implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement. The entire risk arising out of use or performance of Boom Learning products remains with you. No communication, whether oral or written, from us to you creates any warranty. We and our Authors may change, suspend, or discontinue Boom Learning or any product at any time for any reason, with or without notice. If we discontinue services, your resources may not be available to you. You agree that neither we nor our Public Authors shall be liable to you or any third party if Boom Learning or any product is changed, suspended, or discontinued.
13.4 Our liability to you is limited
LIMITATION OF LIABILITY: We work hard to make sure our system is available, but there are a substantial number of factors beyond our control in providing the services, including browser updates, filtering software, entity IT settings, and more. As a result, we cannot guarantee that any or all features will always work, or that Boom Learning will be continuously available to you or your students.
We and our suppliers are not liable to you for any errors or inaccuracies you find in or on Boom Learning; any service, system, or process delays, latencies, failures, or interruptions; or any actions you take in reliance on us, our suppliers, or the content. Our and our suppliers’ liability to you is limited whether or not the harm to you was foreseeable. We and our suppliers are not liable to you for any special, exemplary, or punitive damages, including loss of data, revenue, and/or profits, costs, or expenses, including legal fees and expenses, regardless of the legal theory upon which you claim liability, even if you have advised us or our supplier of the possibility of those damages.
Our and our suppliers’ liability to you is limited to the amount actually paid by you to us, if any, for the product(s) at issue. If you are a supplier, we will not be liable to you for amounts in excess of proceeds due and payable by us to you for the six-month period preceding the claim. YOU AGREE THAT YOU ARE WAIVING CLAIMS THAT YOU MAY NOT KNOW OR SUSPECT YOU HAVE AT THE TIME YOU ENTER INTO THIS AGREEMENT. YOU AGREE TO SPECIFICALLY WAIVE ANY CLAIMS AS A CREDITOR YOU MAY HAVE THAT YOU DO NOT KNOW OR SUSPECT EXIST IN YOUR FAVOR. YOUR WAIVER AS A CREDITOR INCLUDES WAIVER OF CLAIMS THAT WOULD HAVE MATERIALLY AFFECTED HOW YOU WOULD SETTLE A MATTER IN WHICH WE ARE A DEBTOR TO YOU. You acknowledge and agree that we cannot ensure that either content or data will be protected from theft or misuse. We have no liability arising from a failure of any system or feature that limits the use of content or data.
Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
14. Additional Terms
14.1 No data scraping or automated collection
Scraping refers to the use of an automated process to extract data from our site, including components of Boom Cards, and the Boom Cards themselves. You may not scrape any of our properties for any reason. Search engines that comply with our robots.txt instructions are permitted to index only pages that we authorize for indexing. You may not use Boom Learning for any activity that (a) facilitates any virus, malware, Trojan horse, worm, ransomware, or other activity that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any code, data, or information; (b) uses a robot, spider or other automated process, or manual process to monitor or copy Boom Learning, or any portion thereof, without our prior written consent; (c) uses any device, software, routine, or process to bypass any technology protecting access to Boom Learning; or (d) interferes with or attempts to interfere with technology protecting access to Boom Learning.
14.2 For your attorney (and all armchair attorneys)
Rather than burden our users with technical, exhaustive, and precise references to the various intellectual property and related rights necessary, we instruct all attorneys reading this to understand that all necessary rights to take the actions described that are not stated explicitly are implied. Boom Learning, and products available on it, are licensed, not sold. Ongoing access requires a current account.
Our failure to act if you fail to comply with a term does not waive our right to act on any subsequent failure to comply. Nor does it waive the term in question.
14.4 Going our separate ways
This agreement is effective from your acceptance until terminated by you or us in writing or electronically. You terminate by ceasing to use Boom Learning. Any terms that by their nature are intended to apply indefinitely continue to apply, including but not limited to perpetual licenses, ownership provisions, warranties, disclaimers, indemnities, and limitations of liability. Terms that are intended to survive for a period after termination shall also survive for the designated period (such as payout holdbacks for refunds).
14.5 Assigning rights to others
We may assign any rights we have under any agreement to any successor or purchaser of us or of our assets to the extent permitted by law and provided that such successor or purchaser agrees to be bound by the terms. If you assign your rights or obligations to another party, you must give us written notice of the assignment no later than ten (10) business days following the assignment. This agreement is binding on and inures to the benefit of any successors and assigns.
14.6 If one of these terms falls down, they do not all fall down
If the final judgment of a court or arbitrator declares any term invalid, void, or unenforceable, then you and we agree to reduce the scope, duration, area or applicability of the term; to delete specific words or phrases; or to replace any invalid, void, or unenforceable term with a term that is valid and enforceable and that comes closest to expressing the original intention of the invalid or unenforceable term.
14.7 English Language
It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.