Last Updated: September 19th, 2016
Acceptance Of Terms
Learning Bird reserves the right, at its sole discretion, to modify, remove or replace the terms of this Agreement at any time. If the alterations constitute a material change to the terms, Learning Bird will notify you by email or by posting an announcement on the site. What constitutes a material change will be determined at Learning Bird”s sole discretion. You shall be responsible for reviewing and becoming familiar with any such modifications. Using any service or viewing any content following notification of a material change to the terms shall constitute your acceptance of the Terms as modified.
Description Of Service
Services include, but are not limited to, any service and/or content Learning Bird makes available to or performs for you, as well as the offering of any materials displayed, transmitted or performed on the Site or through the Services. Content (“Content”) includes, but is not limited to text, videos, user comments, messages, information, data, graphics, photographs, images, illustrations, and software.
Your access to and use of the Site may be interrupted from time to time as a result of equipment malfunction, updating, maintenance or repair of the Site or any other reason within or outside the control of Learning Bird. Learning Bird reserves the right to suspend or discontinue the availability of the Site and/or any Service and/or remove any Content at any time at its sole discretion and without prior notice.
Learning Bird may also impose limits on certain features and Services or restrict your access to parts of or all of the Site and the Services without notice or liability. The Site should not be used or relied upon for storage of your video, text, photographs and images and you are directed to retain your own copies of all Content posted on the Site.
As a condition to using Services, you are required to open an account with Learning Bird and select a password and username, and to provide registration information. The registration information you provide must be accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your Learning Bird account.
You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trade mark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.
You are responsible for maintaining the confidentiality of your password and are solely responsible for all activities resulting from the use of your password and conducted through your Learning Bird account.
Services are available only to individuals who are either (i) at least 18 years old, or (ii) individual under 18 years old, and who are authorized to access the Site by a parent or legal guardian or academic institution. If you have authorized a minor to use the Site, you are responsible for the online conduct of such minor, and the consequences of any misuse of the Site by the minor. Parents and legal guardians and academic institutions are warned that the Site may display lessons that some individuals may disagree with or find offensive.
The Services are for use by individuals who are educators or parents of school-age children who wish to use the Services. Accounts may not be opened by content aggregators or other market intermediaries and entities who, collect, display or manage education related content. If you do not qualify for registration you are not permitted to open an account or use the Services.
Privacy and Your Account.
Fees and Payments.
Learning Bird accepts payment by credit card and any other form of payment that we make available to you (“Payment Method”).
You agree (i) to pay the subscription fees and any other charges incurred in connection with your user name and password for a Service or access to the Site (including any applicable taxes) at the rates in effect when the charges were incurred. If your subscription includes access to areas containing premium content or services, your access to such areas may be subject to additional fees, terms and conditions, which will be separately disclosed in such areas. We will bill all charges automatically to your Payment Method, and (ii) abide by any relevant Terms of Service or other legal agreement, whether with Learning Bird or a third party, that governs your use of a given payment processing method. You agree that Learning Bird reserves the right to add or remove payment processing methods at its sole discretion and without notice to you.
Subscription fees may include sales tax based on the billing address and sales tax rate in effect for such address.
Subscription fees will be billed at the beginning of your subscription or any renewal. Unless we state in writing otherwise, all fees and charges are nonrefundable. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. If you want to use a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed a Service using your username and password without your authorization, you should notify us immediately at firstname.lastname@example.org. You are responsible for any fees or charges incurred to access a Service through an Internet access provider or other third-party service.
Your subscription will renew automatically, unless we terminate it or you notify us by e-mail (receipt of which must be confirmed by email reply from us), or by another method on the Site as may be provided by Learning Bird for such purpose, of your decision to terminate your subscription. For annual subscriptions, we will notify you of the pending renewal of your subscription at least 30 days prior to the date your subscription renews, except as otherwise required by law. You must cancel your subscription before it renews in order to avoid billing of subscription fees for the renewal term to your Payment Method.
Monthly subscription service:
All payments are due on or before the start of each subscription period. You agree that this subscription based service will automatically renew at the end of each subscription period. All services will renew at the same price as the original subscription price agreed to for the Service the at time of purchase and will be automatically re-billed for payment on the renewed subscription start date.
Annual subscription service:
If an annual subscriber cancels a subscription prior to the Subscription anniversary, the amount of refund will be the price paid less the number of months used, times the monthly subscription fee. Example: A subscriber signs up for an annual subscription of $143.40, after 4 months cancels the subscription and ask for a refund. The total refund is $143.40 less 4 times the monthly subscription fee of $24.95, equal $43.60.
Any order you place for a subscription constitutes a contractual offer. All orders are subject to acceptance by Learning Bird. Acceptance will be confirmed by Learning Bird registering you as a subscriber to the Services.
You may consume contributed material only for non-commercial use. You are receiving a license under copyright to the Content and all rights, title and interest in the Service and Content not expressly granted to you in these Terms are reserved by Learning Bird and its licensors. If you violate any of the terms and conditions of the Content Terms, your rights under this Section will immediately terminate and Learning Bird may terminate your access to the Service and/or your Learning Bird account without notice and without refund to you.
Using your subscription
Any unauthorised use of content available via your subscription will constitute a breach of these Subscription Terms and may constitute copyright infringement.
Paying for and cancelling your subscription
Payment for the subscription Services is in advance, billed on a monthly cycle starting on the day you subscribe to the Services. Unless otherwise stated, prices exclude sales tax. Prices are liable to change at any time at Learning Bird”s discretion, provided that Learning Bird will inform you of any price change and afford you the opportunity to cancel your subscription.
Learning Bird reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the subscription Services (or any part thereof) with or without notice.
Your subscription will expire on the date of expiry of your current subscription period. If you choose to cancel your subscription before the end of the period for which you paid a subscription fee, in the case of a monthly subscription, you will not receive a refund for the remaining period. So by way of example, if you subscribe to the Services on 1st January but decide on January 10th that you don”t want to continue, you can send us notice and your subscription will end on 31st January. In the case of an annual subscription being cancelled, we will deem your subscription to have been a monthly subscription and the following refund procedure will take effect; Learning Bird will calculate the number of complete and partial months that have elapsed since the start of the subscription. Next, we will multiply this number of months by the then prevailing monthly subscription rate. This calculated amount will then be subtracted from the annual subscription amount paid and received. If the resulting amount is less than zero then no refund will be made and the account will be immediately cancelled. If there is a positive balance, then this amount will be refunded to you within 60 days.
Vouchers, Discounts And Other Price Incentives
From time to time, Learning Bird and its partners may run limited free trial subscriptions consisting of a voucher with a code. Once the voucher code is redeemed, the subscription cannot be stopped or paused. No credit or refund is available in exchange for the voucher code. The voucher code is personal to the user and not transferable or assignable. No more than 4 voucher codes may be redeemed by any single user in any 12 month period. The voucher code is valid for a limited time only (see the voucher for more information). Learning Bird shall not take responsibility for any lost, stolen, destroyed, counterfeited, duplicated, tampered with or otherwise misappropriated or fraudulently used (whether actual or suspected) Voucher Codes.
Subscriptions are available for individuals of 13 years or older. If you are 13 or older but under the age of 18, you should review these Subscription Terms with your parent or guardian. Any parent or guardian subscribing on behalf of their child or allowing their child to use a subscription to the Services will be liable for the cost of the subscription and any other liability that may arise as a result of such use.
Termination of your subscription
You reverse on your credit or debit card the subscription fees due;
If your subscription is terminated for any of the 3 reasons set out above, you will not be entitled to a refund.
Content Submitted Or Made Available For Inclusion On The Service
Please read this section carefully before posting, uploading, or otherwise submitting any Content to the Site. By submitting content to the Site you are granting Learning Bird a worldwide, non exclusive license to use the content and are representing and warranting to Learning Bird that the content is owned or duly licensed by you, and that Learning Bird is free to publish, distribute and use the content as hereinafter provided for without obtaining permission or license from any third party.
In consideration of Learning Bird”s agreement to allow you to post Content to the Site and Learning Bird”s agreement to publish such Content and for other valuable consideration the receipt and sufficiency of which are hereby expressly and irrevocably acknowledged, you agree with Learning Bird as follows:
You acknowledge that:
By uploading your lessons, assessments or other material to Learning Bird you retain full rights to those works that you had prior to uploading.
By posting Content to the Site you hereby grant to Learning Bird a non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content in connection with the Services. This license will exist for the period during which the Content is posted on the Site and will automatically terminate upon the removal of the Content from the Site;
The license granted to Learning Bird includes the right to use your Content fully or partially for promotional reasons and to distribute and redistribute your Content to other parties, web-sites, applications, and other entities;
Learning Bird makes no representation or warranty that Content posted on the Site will not be unlawfully copied without your consent; and
Subject to the terms of the foregoing license, you retain full ownership or other rights in your Content and any intellectual property rights or other proprietary rights associated with your Content.
You represent and warrant that:
You are the owner of all rights, including all copyrights in and to all Content you submit to the site;
You have the full and complete right to enter into this agreement and to grant to Learning Bird the rights in the Content herein granted, and that no further permissions are required from, nor payments required to be made to any other person in connection with the use by Learning Bird of the Content as contemplated herein; and
The Content does not defame any person and does not infringe upon the copyright, moral rights, publicity rights, privacy rights or any other right of any person, or violate any law or judicial or governmental order.
You shall not have any right to terminate the permissions granted herein, nor to seek, obtain, or enforce any injunctive or other equitable relief against Learning Bird, all such rights are hereby expressly and irrevocably waived by you in favour of Learning Bird.
All Content posted or otherwise submitted to the Site is the sole responsibility of the account holder from which such Content originates and you acknowledge and agree that you, and not Learning Bird are entirely responsible for all Content that you post, or otherwise submit to the Site. Learning Bird does not control user submitted Content and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site you may be exposed to Content that you find to be offensive, indecent or objectionable.
As a condition of use, you promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Learning Bird. By way of example, and not as a limitation, you agree not to use the Services:
To abuse, harass, threaten, impersonate or intimidate any person;
To post or transmit, or cause to be posted or transmitted, any Content that is libellous, defamatory, obscene, pornographic, abusive, offensive, profane, or that infringes any copyright or other right of any person;
For any purpose (including posting or viewing Content) that is not permitted under the laws of the jurisdiction where you use the Services;
To post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Learning Bird user;
To create or transmit unwanted “spam” to any person or any URL;
To create multiple accounts for the purpose of voting for or against Content;
To post copyrighted Content which doesn”t belong to you;
With the exception of accessing RSS feeds, you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iii) bypass any measures we may use to prevent or restrict access to the Site;
To artificially inflate or alter vote counts, blog counts, comments, or any other Service or for the purpose of giving or receiving money or other compensation in exchange for votes, or for participating in any other organized effort that in any way artificially alters the results of Services;
To advertise to, or solicit, any user to buy or sell any products or services, or to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
To promote or sell Content of another person
To sell or otherwise transfer your profile;
To share your Learning Bird account password with someone else to allow them to view an item of Content that such person did not subscribe to;
To copy, sell, rent, or sublicense the Content to any third party;
To circumvent, reverse-engineer, modify, disable, or otherwise tamper with any security technology that Learning Bird uses to protect the Content or encourage or help anyone else to do so;
To access the Content other than by means authorized by Learning Bird; or
To remove any proprietary notices or labels on Content.
You acknowledge and agree that certain Content available on the Service may be considered offensive to some people and that such content may not be labeled as such and that descriptions of Content are not guaranteed to be accurate. You agree to use the Service at your own risk and Learning Bird will have no liability to you for any content that you find offensive.
Learning Bird reserves the right to change the availability of Content and/or pricing without notice. In addition, we reserve the right to modify, suspend, or discontinue the Service with or without notice to you and we will not be liable to you or any third party for any such modifications, suspension, or termination.
We may also, in our sole and absolute discretion, change these Content Terms from time to time so we encourage you to periodically review the most up-to-date version. Your continued use of the Service constitutes your agreement to abide by the Content Terms as changed. If you object to any such changes, your sole recourse will be to stop using the Service.
To report a suspected abuse of the Site or a breach of the Terms Of Service (other than relating to copyright infringement which is addressed under “COPYRIGHT COMPLAINTS” below) please send written notice to Learning Bird at email: email@example.com.
You are solely responsible for your interactions with other users of the Site. Learning Bird reserves the right, but has no obligation, to monitor disputes between you and other users. You agree that you are solely responsible for (and that Learning Bird has no responsibility to you) your use of the Service or any Content, any breach of your obligations under the Content Terms, and for the consequences (including loss or damage of any kind which Learning Bird may suffer) of any such breach.
Fair Usage Policy
Learning Bird maintains a fair usage policy to ensure stable and fast service to all users. Accounts are limited to a maximum of 500 lesson views per week. Any additional usage may result in restrictions on your account including limited access to lessons if the limit is exceeded for several months. Accounts that exceed a limit for several months will be notified of their usage and restrictions may be imposed if usage is not corrected.
Learning Bird respects the intellectual property rights of others. It is our policy to respond promptly to any claim that Content posted on the Site infringes the copyright or other intellectual property infringement (“Infringement”) of any person. Learning Bird will use reasonable efforts to investigate notices of alleged Infringement and will take appropriate action under applicable intellectual property law and these Terms where it believes an Infringement has taken place, including removing or disabling access to the Content claimed to be infringing and/or terminating accounts and access to the Site.
To notify Learning Bird of a possible Infringement you must submit your notice in writing to the attention of “Copyright Infringement” care of firstname.lastname@example.org and include in your notice a detailed description of the alleged Infringement sufficient to enable Learning Bird to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys” fees) for misrepresenting that any Content is infringing your copyright.
If we remove or disable access to Content in response to a notice of Infringement, we will make reasonable attempts to contact the user who posted the affected Content. If you feel that your Content is not infringing, you may provide Learning Bird with a counter notice in writing to the attention of “Copyright Infringement Counter Notification” at email@example.com. You must include in your counter notice sufficient information to enable Learning Bird to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys' fees) if you materially misrepresent that your Content is not infringing the copyrights of others. If you are uncertain whether an activity constitutes Infringement, we recommended seeking the advice of an attorney.
The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Learning Bird has no control over such sites and resources, you acknowledge and agree that Learning Bird is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Learning Bird shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such Site or resource.
Release And Indemnity
You hereby expressly and irrevocably release and forever discharge Learning Bird, its affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns of and from any and all actions, causes of action, suits, proceedings, liability, debts, judgments, claims and demands whatsoever in law or equity which you ever had, now have, or hereafter can, shall or may have, for or by reason of, or arising directly or indirectly out of your use of the Site and the Services.
You hereby agree to indemnify and hold harmless Learning Bird, its affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys' fees, resulting from or arising out of (i) a breach of these Terms, (ii) Content posted on the Site, (iii) the use of the Services, by you or any person using your account or Learning Bird Username and password, or (iv) any violation of any rights of a third party.
Limitation of liability
WE WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY, SHALL NOT EXCEED THE SUBSCRIPTION PAYMENTS ACTUALLY RECEIVED AND RETAINED BY LEARNING BIRD FROM YOU FOR THE SERVICES.
Learning Bird, Learning Bird.com and other Learning Bird graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Learning Bird. Learning Bird”s trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Learning Bird. The images and icons available in the Learning Bird icon pack may used by partners and third party sites in connection with providing appropriate links to the Learning Bird Site.
Learning Bird may terminate or suspend any and all Services and/or your Learning Bird account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms. Upon termination of your account, your right to use the Services will immediately cease. If you wish to terminate your Learning Bird account, you may simply discontinue using the Services. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
It is your responsibility to remove all Content from your account prior to termination. Upon termination of your account Learning Bird will automatically remove all Content posted to your account.
This Agreement begins on the date of your registration on the Site and will continue until terminated by either party in accordance with the terms of this Agreement. All terms that should reasonably be construed as surviving the termination of this Agreement, will survive termination.
No agency, partnership, joint venture, or employment is created as a result of the Terms and you do not have any authority of any kind to bind Learning Bird in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Learning Bird shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Learning Bird”s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of the Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable. Learning Bird may transfer, assign or delegate the Terms and its rights and obligations without consent. The Terms shall be governed by and construed in accordance with the laws of Quebec, as if made within Quebec between two residents thereof, and the parties submit to the exclusive jurisdiction of Quebec courts. Both parties agree that the Terms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Terms, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
GOVERNING LAW; ARBITRATION.
Governing Law. This Agreement will be interpreted according to the laws of the Province of Quebec, Canada, excluding those or choice of law principles or other laws that would give effect to the laws of a different jurisdiction.
Forum for Legal Disputes. You agree that any claim or dispute you may have against us must be resolved exclusively by a provincial or federal court located in Montreal, Canada, except as otherwise agreed by the parties or as described in the Arbitration option discussed below. You agree to submit to the personal jurisdiction of the courts located within Montreal, Canada for the purpose of litigating all such claims or disputes.
Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief or any claim with respect to contributions or assignments made pursuant to the talent & experts program) where the total amount of the award sought is less than us $15,000, you may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, that party shall initiate such arbitration through an established alternative dispute resolution ("adr") provider mutually agreed upon by the parties. The adr provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Contacting Us. Learning Bird has provided the above options to provide you with a neutral and cost effective means of resolving disputes. Before resorting to binding legal adjudication, we encourage you to first contact us directly to seek resolution of any claims or disputes by going to the “Help Desk and Contact Us” page on our site.
Interpretation; Construction. In interpreting this Agreement, the words “including” and “includes” are meant to be illustrative and not limiting. This Agreement will not be interpreted in favor of one party or the other based on any presumptions regarding the drafting of the document. The section titles used in this Agreement are for convenience of reference only and have no legal or contractual effect. You may not assign or otherwise transfer any of your rights or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. All notices under this Agreement must be in writing and will be considered delivered if sent via confirmed e-mail to an address provided by the recipient party to the sending party, or by overnight delivery service, or hand delivery to a provided address. If any provision of this Agreement is held to be unenforceable: (a) the enforceability of the remaining provisions of this Agreement will not be affected; and (b) the unenforceable provisions will be replaced with valid provisions the effect of which comes as close as possible to that of the unenforceable provisions.
Data Protection. You consent to us and our duly authorized agents and employees holding and processing both electronically and manually the data (including personal sensitive data and information contained in email, email attachments and other forms of electronic communication) that we collect, store or process that relates to you, for the purposes of the administration and management of our contractors and business and for compliance with applicable procedures, laws and regulations.
Additional license agreement terms and conditions for use of assessments
ADDITIONAL LICENSE GRANT: You, (the “Licensee”) is hereby granted a limited, non-exclusive, non-transferable right and license to access and use the FAIB within the State in which the Licensee is organized, authorized and resides (the “Licensee Territory”) to provide non‑commercial access to and use of any or all of the items from Provider’s Formative Assessment Item Bank (referred to herein as the “FAIB” or individual items, materials associated with the items such as reading passages and graphics, and scoring materials from the FAIB as “Items” ) to students registered within the Licensee’s schools/districts for the sole purpose of performing formative assessments of those students (the “License”). The Licensee is strictly prohibited from using or promoting any Items in the FAIB as high stakes assessments. The results of high-stakes assessments are used for purposes other than improving instruction and student learning, such as graduation tests, college admissions tests and teacher evaluation assessments. All rights, licenses and privileges not expressly granted to the Licensee under the License will remain exclusive to Certica Solutions, Inc. (“Provider”). Without limiting the generality of the foregoing, the Licensee acknowledges that Provider retains all rights under copyright and all other intellectual property rights in and to the FAIB, all Items included therein, all revisions, modifications, translations, or other adaptations or transformations of the FAIB or the Items, including assessments, and other derivative works created there from (collectively the “Derivative Works”). The Licensee’s rights to access and use the FAIB, the Items and all Derivative Works thereof shall terminate upon the earlier of (i) termination of the agreement between the Licensee and Learning Bird granting this License, or (ii) termination of Learning Bird’s right and license to distribute the FAIB. Licensee acknowledges that use of the FAIB, the Items and all Derivative Works, thereof after termination of the License is strictly prohibited and would constitute infringement of Provider’s proprietary rights.
Pursuant to the License, the Licensee acknowledges and agrees that certain Items in the FAIB may include material licensed by third parties to Provider (“Third Party Content”) and that Provider’s rights in and to such Third Party Content may expire or otherwise terminate during the term of the License. Any rights in and to Third Party Content will at all times be limited and subject to Provider’s rights in and to the respective Third Party Content, notwithstanding anything to the contrary in the Licensee’s agreement with Learning Bird. Throughout the term of the License Provider will have the right, at its sole discretion, to modify the FAIB, and to delete, and require the deletion by the Licensee, of specific Items and/or passages from the FAIB.
Provider representations, warranties and limitations of liability. Provider represents that it has the right to grant this license. Provider makes no warranty whatsoever, whether statutory, express or implied, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, accuracy, non-infringement, title. Provider is not responsible for the validity, fairness or quality of assessments that are ultimately prepared by the licensee using the FAIB. Provider will have no responsibility with respect to any use of the FAIB or any items (a) to the extent that any items have been modified without prior written approval by Provider or (b) for any purpose other than for formative student assessments or (c) for failure to use the items or FAIB in accordance with the license or the licensee’s agreement with Learning Bird. Provider is not responsible for the content, accuracy, completeness or adequacy of any state standards accessible through the covered platform.
Provider will have no liability under the licensee’s agreement with Learning Bird. In no event shall Provider be liable for consequential, incidental, punitive or other indirect damages. Furthermore, notwithstanding anything contained in the agreement to the contrary, under no circumstances shall Provider be liable to licensee or any third party for any damages in excess of the fees paid to Provider by or on behalf of the licensee pursuant to the license or the licensee’s agreement with Learning Bird during the twelve-month period immediately preceding such claim.