Effective on November 8, 2018
THESE TERMS GOVERN YOUR USE OF THE SITE AND SERVICES PROVIDED THROUGH THE SITE.
1. ACCEPTANCE OF TERMS
- MAC provides its Service(s) (defined below) to you through its Site, subject to these Terms.
- By accessing or using the Site, you represent and acknowledge that you have read and you understand and agree to be bound by these Terms, and that the information you provide in registering for any services with MAC is accurate, complete, and is yours or within your right to use. If you are entering into these Terms on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the terms “you,” “your” or related capitalized terms herein shall refer to such entity and its affiliates. If you do not have such authority or if you do not agree with these Terms, you may not use the Services or access the Site.
- You acknowledge that these Terms constitute a contract between you and MAC, even though it is electronic and is not physically signed by you and MAC. You further acknowledge that these Terms govern your use of the Services and, except for written agreements or addendums signed by the parties that specifically modify or that conflict with these Terms, these Terms supersede any other agreements between you and MAC.
2. AVAILABILITY OF THE SITE
You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third-party sites, that may affect your use of the Services and that are beyond our control to prevent or correct. Interruptions in the Services that are beyond our control shall not serve as a basis for a refund of any fees or as a basis not to comply with your contractual obligations.
3. DESCRIPTION OF SERVICEs
- MAC provides a platform for delivering assessment services and common assessment modules (collectively, referred to as the “Service” or “Services”). The Services include (a) the Site, (b) the MAC software, and (c) the other goods or services provided to you through the Site, including all software, data, text, images, sounds, videos, and other content made available through the Site (collectively, “Content”), which include, but are not limited to goods or services related to the foregoing. Any new features added to or augmenting the Services are also subject to these Terms.
- MAC does its very best to make the Services available, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond its reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures beyond its control.
4. THIRD-PARTY SERVICES
- External Sites. The Services may contain links to, or otherwise may allow you to connect to and use certain third-party products, services or software under separate terms and conditions (collectively, “Third-party Services”) in conjunction with our Services. If You decide to access and use such Third-party Services, be advised that your use is governed solely by the terms and conditions of such Third-party Services, and we do not endorse, are not responsible for, and make no representations as to such Third-party Services, their content or the manner in which they handle your data. MAC is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Third-party Services, or your reliance on the privacy practices or other policies of such Third-party Services.
5. MEMBERSHIP/SUBSCRIPTION FEES, PLAN MODIFICATIONS AND PAYMENTS
- Billing and Payments. Some Services on the Site may be made available only on a fee basis or may be available only to members, supporters or partners of MAC that pay a fee. Any fees will be based upon the then current rates set by MAC.
- Authorization to Charge Your Credit Card. By becoming a member, supporter, partner or purchasing/subscribing to a fee-based service of MAC and submitting your credit card information to MAC, you authorize MAC to store your credit card information directly or with a third-party service provider for purposes of processing payment of fees.
- Taxes. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against MAC based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so.
6. INTELLECTUAL PROPERTY RIGHTS
- Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to you to use the Services under these Terms do not convey any additional rights in the Services, or in any Intellectual Property Rights associated therewith.
- You own the information and content you provide MAC or input on third-party websites through the Services. You grant MAC a nonexclusive, revocable, worldwide, perpetual, unlimited fully paid up and royalty-free right to use copy, prepare derivative works of, distribute, publish, remove, retain, add, process, or analyze the foregoing described information and content. By providing information or content to us or to third-parties through the Services, you represent and warrant that you are entitled to and authorized to submit the information and content and that the information and content is accurate, not confidential, and not in violation of any contractual restrictions or other third-party rights.
- MAC shall have an unlimited fully paid up and royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you.
- MAC and MAC’s other product and service names, and logos used or displayed on the Services are registered or unregistered trademarks of MAC (collectively, “Marks”). MAC’s Marks may not be used without permission. MAC is not granting you a license under any intellectual property right to the Marks. Other trademarks, logos, and trade names that may appear on the Site or through the Services are the property of MAC and its licensors (“Third-party Marks”). We are not granting you a license under any intellectual property right to the Third-party Marks. You may not remove any Marks, Third-party Marks or other source indicators from any part of MAC’s content.
- All rights, title and interest in and to the Services and its components, including all related intellectual property rights, will remain with and belong exclusively to MAC and its third-party vendors.
- Upon purchasing the Services or subscribing to the Services and upon the condition that you comply with all of your obligations under this Agreement, MAC grants you a non-exclusive, non-transferable, revocable license to access and use the Services (for the particular item purchased or the subscription and term of subscription purchased) and the Site, strictly in accordance with this Agreement and subject to all the limitations set forth in this Agreement. As part of the foregoing license grant, you are hereby granted a worldwide, royalty-free, non-sublicensable, non-exclusive license to reproduce and share downloadable assessment materials that are made available to you through the Service (“Assessment Materials”) for educational purposes only. This license does not provide you with any rights for any other non-commercial or commercial purposes. If any right from a third-party terminates that MAC has obtained rights that relate to the Assessment Materials, then MAC may terminate this license related to any rights that terminate. If you share the Assessment Materials as provided for and authorized under these Terms, you must: (a) retain the identification of the creators of the Assessment Materials and any others reasonably designated to receive attribution, in any reasonable manner requested by MAC, including a copyright notice, notice of this license, and notice of the disclaimer of warranties in this license; and (b) indicate that the Assessment Materials are licensed under these Terms, and include the text of, or a hyperlink to, these Terms.
7. ACCOUNT REGISTRATION
- Subject to the terms and conditions of these Terms, you agree to access and use the Services only for your own internal purposes as contemplated by these Terms.
- To be eligible to use the Services, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) are not currently restricted from the Services, or not otherwise prohibited from having a MAC account, (3) are not a competitor of MAC or are not using the Services for reasons that are in competition with MAC; (4) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (5) will not violate any rights of MAC, including intellectual property rights such as patent, copyright or trademark rights; and (6) agree to provide at your cost all equipment, software, and internet access necessary to use the Services.
8. USE OF THE SERVICEs
- You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third-party, other than as expressly permitted by these Terms; (b) use the Services to process data on behalf of any third-party, (c) modify, adapt or hack the Services to falsely imply any sponsorship or association with MAC, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (d) use the Services in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Services; (g) use the Services to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Site; (i) unless otherwise explicitly agreed to in writing by MAC, use the Site or any content obtained from it to develop, as a component of any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (j) use automated scripts to collect information from or otherwise interact with the Site or the Services; (k) deep-link to the Site for any purpose (other than MAC’s home page), unless expressly authorized in writing by MAC; (l) try to use, or use the Services in violation of these Terms; (m) use the Services for any purpose competitive with MAC; or (n) process through the Services any data belonging to another person or entity without obtaining the proper authorization and consent to do so.
- You are responsible for all information, data, text, messages or other materials that you post or otherwise transmit via, to or through the Services. You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under your login or account. You agree and acknowledge that your login may only be used by one (1) person, and that you will not share a single login among multiple people. You may create separate logins for as many people as your membership or subscription allows. You agree that you will not sell, trade or otherwise transfer your login or account to another party and that you will not, unless otherwise specifically agreed to in writing by MAC, charge anyone for access to any portion of the Site, or any information therein. You agree that you are responsible for anything that happens through your account until you cancel and close your account or prove that your account security was compromised due to no fault of your own.
- We offer our Services to schools, school districts, school administrators, and related entities, organizations and individuals who use our Services on their behalf (collectively, “Schools“). In this context, please be aware that our Services and certain content Schools provide may be subject to the Family Educational Rights and Privacy Act (“FERPA“), the Protection of Pupil Rights Amendment (“PPRA“) and other laws or regulations applicable to student information. FERPA is a Federal law that applies to student “education records” (as defined by FERPA in 20 U.S.C. § 1232g(a)(4)(A)). PPRA is a Federal law that applies to the protection of students in surveys, analyses and evaluations (see 20 U.S.C. § 1232h). For a brief summary of FERPA, please visit the following link: Summary of FERPA. For a brief summary of PPRA, please visit the following link: Summary of PPRA. If you are a School using our Services, you hereby represent and warrant that you comply (and will comply) with your responsibilities under FERPA, PPRA and any other laws or regulations applicable to student information in connection with our Services. Such responsibilities include, without limitation, receiving consent from, or providing notice to (as applicable), eligible students or parents regarding the maintenance and/or use of such information. We recommend that all Schools provide appropriate disclosures to students and parents regarding their use of service providers such as MAC. If you are a School using our Services, you are solely responsible for any and all student information submitted and you represent and warrant that you have the right to disclose such information and allow the processing of that information through the Site.
9. DATA PRIVACY AND SECURITY
- In providing you the Services we shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of your personal data. These safeguards include encryption of your data in transmission (using SSL or similar technologies), except for external third-party integrations that do not support encryption.
10. CANCELLATION AND TERMINATION
- You may cancel your membership or subscription with MAC at any time; however, unless MAC is in breach of this Agreement and does not cure said breach within thirty (30) days of receiving written notice from you of an actual breach, identifying specifically the nature of the breach, you are not entitled to any refunds and you will be responsible for any fees for the Services through the end of the then current term. We may suspend or cancel your membership or subscription without notice or refund to you if you violate this Agreement. If your membership or subscription is cancelled, MAC reserves the right to remove your membership or subscription information (also referred to as “account information”) along with any settings associated with your membership, subscription or other use of the Services (“account settings”) from our servers with no liability or notice to you. Once your account information and account settings are removed, you will not be able to recover this data and you will lose access to all of your content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions).
- MAC reserves the right to (i) modify or discontinue, temporarily or permanently, the Services (or any part thereof) and (ii) refuse any/all current and future use of the Services, suspend or terminate your account or any part thereof (or your use of the Services), and remove and discard any of your content within the Services if we believe that you have violated these Terms. MAC will use all reasonable efforts to contact you directly via email to warn you prior to suspension or termination of your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of your use of Services, and may be referred to law enforcement authorities. MAC shall not be liable to you or any third-party for any modification, suspension or discontinuation of the Services.
11. DISCLAIMER OF WARRANTIES AND LIABILITY
- THE SERVICES, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND MAC EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- MAC DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, CONTENT OR MATERIALS FROM OR RELATED TO THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR THE SERVICES, SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SITE, THE SOFTWARE, OR ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
- YOU ACKNOWLEDGE THAT MAC DOES NOT WARRANT THAT INFORMATION OR ADVICE OR ASSISTANCE OR SERVICES OBTAINED BY YOU FROM MAC OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. MAC DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN THE FUNCTIONING OF THE SITE, EXCEPT AS OTHERWISE EXPRESSLY SETFORTH HEREIN. FURTHERMORE, MAC DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications, problems related to the SERVICES or its use, loss of personal content on the site, lost or undeliverable email, AND FOR ANY OTHER REASON. Under no circumstances will MAC be responsible for any loss or damage, including, but not limited to personal injury or death, resulting from use of the Site or the Services, or any interactions between users of the Site or the Services, whether online or offline.
- MAC provides the platform for the Services. MAC does not control or vet user generated content for accuracy. Although we provide rules for user conduct and postings, we do not control and we are not responsible for what users post, transmit or share on or through the Site or any other website (even if such content is published on or through the Site). Furthermore, we are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site. MAC is not responsible for the conduct, whether online or offline, of any user of the Site or the Services. Further, MAC is not responsible or liable in any manner for any third-party applications, software, viruses, etc. that are uploaded or posted on the Site, caused by users of the Site, or that are related to the use of the Services by third-parties, or caused by any third-parties’ use of the equipment or programming associated with or utilized in the Site or the Services. To the extent that MAC provides for interactive social media features through the Services, you are welcome to post, transmit, or submit messages (“Messages”) to forums, blogs, bulletin boards, chat rooms, user commenting features, or other interactive or social features that may be offered within, or in connection with, http://www.michiganassessmentconsortium.org/ (collectively, “Forums”). If you use any such Forums, you should be aware that any personal information you submit, display, or publish there is considered publicly available and can be read, collected, used, and disclosed by other users of those features, by us, and by other third parties without restriction. MAC accepts no responsibility whatsoever in connection with or arising from such Messages or for the personal information you choose to submit in these features. Messages submitted to Forums are not necessarily reviewed by MAC prior to posting, are not attributable to the MAC and do not necessarily reflect the opinions or policies of MAC or any partners, members, consultants, employees or agents thereof. When posting a Message, you are solely liable for any errors or omissions, or any losses, claims, injuries or damages arising from its display or use. MAC makes no warranties, express or implied, as to the content of the Messages in the Forums or the accuracy and reliability of any Messages and other materials in the Forums. Nonetheless, MAC reserves the right to prevent you from submitting content to Forums and to delete, edit, or alter in any manner we see fit any Messages that we, in our sole discretion, deem to be obscene, offensive, defamatory, threatening, in violation of trademark, copyright or other laws, of an express commercial nature, or which are otherwise unacceptable in our sole discretion. If MAC chooses, at its sole discretion, to monitor the Forums, MAC nonetheless assumes no responsibility for the content of the Messages, no obligation to modify or remove any inappropriate Messages, and no responsibility for the conduct of the user submitting any Message. In submitting Messages to Forums, you agree to strictly limit yourself to discussions about the subject matter for which the Forums are intended. Any Message submitted by you may be used by MAC and copied, sublicensed, adapted, transmitted, distributed, publicly performed and published, displayed, or deleted as MAC sees fit.
- MAC CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICES.
- We do not monitor content published through the Services and we are not responsible for content published through the Services. Notwithstanding the foregoing, MAC reserves the right to delete, move, or edit messages or materials, including, but not limited to, advertisements, public postings, and messages, that we, in our sole discretion, deem necessary to be removed.
12. LIMITATION OF LIABILITY
- NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL MAC OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY YOU IN CONNECTION WITH THESE TERMS OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
- LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, MAC’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD-PARTY ARISING FROM OUR SERVICES, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU TO MAC FOR THE SERVICES DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12.B. IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FACT THAT NO FEES ARE CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MAC WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MAC HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
- Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, MAC’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- If you are a California resident, you agree to waive California Civil Code Section 1542, which says, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him, must have materially affected his settlement with the debtor.” And, if you are not a California resident, you agree to waive any applicable state statutes of a similar effect.
You agree to defend, indemnify, and hold harmless MAC from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, your obligations under these Terms, or your and your end users’ access to, use, misuse or illegal use of the Site or any Services provided by or through MAC. MAC will provide you notice of any such claim, suit, or proceeding. MAC reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case you agree to cooperate with any reasonable requests to assist MAC’s defense of such matter.
MAC may assign these Terms or any of its rights under these Terms to a third-party. You may not, without the express written consent of MAC, assign these Terms or any of your rights under these Terms, directly, by operation of law or otherwise, without the prior written consent of MAC. Subject to the foregoing restrictions on assignment, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of this Section will be void. These Terms shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.
15. ENTIRE AGREEMENT; AMENDED TERMS
EXCEPT TO THE EXTENT THAT MAC AND YOU HAVE ENTERED INTO AND EXECUTED ANOTHER FULLY INTEGRATED AGREEMENT:
- This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, all previous understandings whether oral or written having been merged herein. No representations or warranties have been made other than those expressly set forth herein. Without limiting the foregoing, the parties have not relied on any oral statements that are not included in the Terms. The Terms may not be changed, modified, renewed, extended, or discharged or any covenant or provision hereof waived except by an agreement in writing signed by both parties. These Terms supersede prior versions of these Terms.
- Notwithstanding the foregoing, we may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify you of such changes and direct you to the latest version. Upon notice of modification of these Terms, except such modifications required by law, you may notify us within two weeks of our sending you notice of the amended Terms that you are exercising your right to terminate, if applicable, your subscription to the Services. Upon termination of your subscription under this Section, any prepaid fees will be prorated and returned to you.
If any provision of these Terms, or the application thereof under certain circumstances, is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms, or the application of such provision under other circumstances, shall remain in full force and effect.
17. RELATIONSHIP; INDEPENDENT CONTRACTOR
Nothing herein contained shall be so construed as to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither party shall have any power to obligate or bind the other party, except as specifically provided herein.
Sections 1 (Acceptance of Terms), 5 (Billing, Plan Modifications and Payments), 6.A-F. (Intellectual Property Rights), 8.C (Student Information), 10 (Cancellation and Termination), 11 (Disclaimer of Warranties and Liability), 12 (Limitation of Liability), 13 (Indemnification), 14 (Assignment), 15 (Entire Agreement; Amended Terms), 16 (Severability), 17 (Relationship; Independent Contractor), 18 (Survival), 19 (Governing Law), 20 (Arbitration of Disputes), and 21 (No Waiver) will survive any termination of these Terms.
19. GOVERNING LAW
The validity, interpretation and performance of these Terms shall be governed by the laws of the State of Michigan without giving effect to the conflicts of laws provisions or principals thereof. You agree to the exclusive jurisdiction of the courts located within the State of Michigan to resolve any disputes between the parties and you agree that proper venue is in Ingham County, Michigan or in the Federal District Courts located in Michigan.
20. ARBITRATION OF DISPUTES
If we cannot amicably resolve any legal dispute or damage claim that should arise from your interactions with the Site, the Services, and/or MAC, you agree to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in Ingham County, Michigan, in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of both you and MAC. If we cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Michigan shall apply to the arbitration proceedings. You agree that the arbitrator cannot award punitive damages to either of us and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, which shall include, but not be limited to, the courts within Ingham County, Michigan.
You agree that (i) no arbitration proceeding hereunder whether a CONSUMER DISPUTE or a BUSINESS DISPUTE shall be certified as a class action or proceed as a class action, or on a basis involving claims brought in a purported representative capacity on behalf of the general public, other customers or potential customers or persons similarly situated, and (ii) no arbitration proceeding hereunder shall be consolidated with, or joined in any way with, any other arbitration proceeding. YOU AGREE TO ARBITRATE A CONSUMER DISPUTE OR BUSINESS DISPUTE ON AN INDIVIDUAL BASIS AND YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION. We agree to the same limitations set forth in this section.
21. NO WAIVER
MAC’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
22. Digital Millennium Copyright Act Notice
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Site or any service offered by MAC, please notify MAC, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim is being infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Services;
- Information reasonably sufficient to permit MAC to contact you, such as your address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
23. CONTACTING US
If you have any questions about these Terms, please contact us at:
Michigan Assessment Consortium, Inc.
1980 North College Road Mason, Michigan, 48854