Bluejack Kids Digital Content License Agreement
Last Updated: June 2021
This Digital Content License Agreement (“Agreement”) governs your access and use of the online service (the “Service”) that allows you (an “Authorized User”) to access Bluejack Kids’ digital lessons, videos, supplemental and related activities materials, and other resources (collectively, the “Digital Content”) and your use provided by Bluejack Kids (“Bluejack Kids,” “we,” or “us”).
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE SERVICE. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND OUR DATA PROCESSING ADDENDUM WHICH IS INCORPORATED BY THIS REFERENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND/OR OUR DATA PROCESSING ADDENDUM, YOU WILL NOT BE PERMITTED TO ACCESS OR USE THE SERVICE. The Data Processing Addendum is Exhibit 1 to this Agreement.
2. Scope of License to the Service.
2.1. License to Service. Subject to the terms and conditions of this Agreement, Bluejack Kids grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during your Subscription to (i) access and use the Service and any associated documentation and information provided by Bluejack Kids via Bluejack Kids’ website, (ii) display and perform the Service, and (iii) download, use, copy and distribute the downloadable portions of the Digital Content solely for your own internal, noncommercial use and solely for purposes of (y) real-time, in-person, and in-person classroom instruction and (z) real-time, remote video instruction. Any Bluejack Kids updates or upgrades to the Service, including any updates or upgrades that supplement or replace the original Service shall also be governed by this Agreement unless separate license terms accompany such updates or upgrades, in which case such separate terms will govern in the event of a conflict between such separate terms and this Agreement or as otherwise provided in such separate terms. We reserve the right, but shall have no obligation, in our sole discretion, to modify, update, upgrade or otherwise make changes, modifications, alterations, additions to or deletions from the Service, and to change, modify, alter, add to, or eliminate features, functionality or components from the Service at any time without notice and without obligation or liability to you.
2.2. Rights to Your Data. You agree that, in order to provide the Service, Bluejack Kids may process, transfer, use, store, transmit, display, and modify the data provided to Bluejack Kids by you, including data that relates to you (“Your Data”). To the extent that Bluejack Kids processes Personal Data (as defined in the Data Processing Addendum attached hereto as Exhibit 1) contained within Your Data in connection with this Agreement, it will be subject to the Data Processing Addendum. As between you and Bluejack Kids, you retain all right, title and interest in and to Your Data. You also acknowledge and agree that, where not prohibited by applicable law, Bluejack Kids may deidentify and aggregate technical, usage, and other data about you (“Aggregated Data”). Bluejack Kids may use the Aggregated Data to analyze, improve, support and operate the Service and otherwise for any business purpose, during and after the term of this Agreement. For clarity, Aggregated Data excludes any Personal Data (as defined in the Data Processing Addendum attached hereto as Exhibit 1) and will not identify you. Aggregated Data will not be considered Your Data.
3. License Restrictions. The rights granted in Section 2.1 of this Agreement constitute the entirety of your rights with respect to the Service and Bluejack Kids reserves all rights in and to the Service not expressly granted to you in this Agreement. The license granted to you in Section 2.1 is for internal purposes only and does not allow you to do any of the following: (a) except as specifically provided in Section 2.1, permit or authorize any third party to access or use the Service; (b) use the Service on any device you do not own or control; (c) reverse engineer, decompile, disassemble or attempt to discover any source code or trade secrets related to the Service or any proprietary materials of Bluejack Kids; (d) modify, alter or create any derivative works of the Service; (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Service; (f) use or incorporate your trademark(s) or other proprietary notice(s) or any third party trademark(s) or other proprietary notice(s) on, in or in connection with the Service or to suggest or imply any association between you or any third party and Bluejack Kids or the Service; (g) work around any technical limitations in the Service; (h) combine, integrate into or with, or otherwise connect for any purpose the Service with your goods or services or any third-party goods or services or (i) use the Service for purposes other than those for which it was designed or permitted under this Agreement, including, but not limited to, for purposes of downloading or distributing the Digital Content or any other content made available via the Service (except as provided in Section 2.1). Unless stated in this Agreement or otherwise by Bluejack Kids, nothing in this Agreement shall be construed as conferring any right or license to intellectual property rights, whether by estoppel, implication, statute or otherwise. If you breach any of these restrictions, you may be subject to prosecution and damages. The license granted in Section 2.1 is revocable at any time.
4. Ownership of the Service. The Service is licensed, not sold, subject to the terms of this Agreement. The Service is valuable property of Bluejack Kids and is protected by copyright and other intellectual property laws and treaties. Bluejack Kids owns all right, title, and interest in and to the Service, including all copyright and other intellectual property rights therein.
5. Payment Terms.
5.1 Subscriptions. We offer different subscription plans for access and use of the Service (each, a “Subscription”), on an annual basis, all as specified on the Service site.
WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) BLUJACK KIDS (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU IN FULL FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) IN ADVANCE; AND (B) YOUR SUBSCRIPTION WILL CONTINUE THROUGH THE APPLICABLE SUBSCRIPTION TERM UNLESS WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICE IN ACCORDANCE WITH THIS AGREEMENT; AND (C) UNLESS CANCELLED BY YOU OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICE, YOUR SUBSCRIPTION WILL RENEW AUTOMATICALLY AT THE EXPIRATION OF THE APPLICABLE SUBSCRIPTION TERM. WE WILL NOTIFY YOU 30 DAYS IN ADVANCE OF YOUR SUBSCRIPTION RENEWAL VIA THE EMAIL ADDRESS PROVIDED AT THE TIME OF REGISTRATION.
5.2 Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING BLUEJACK KIDS THROUGH OUR CONTACT US PAGE OR BY CALLING THE CONTACT NUMBER PROVIDED ON OUR SITE OR THROUGH ACCESSING YOUR ACCOUNT ON OUR SITE. IF YOU CANCEL YOUR SUBSCRIPTION WITHIN SEVEN (7) DAYS OF PURCHASE, YOU WILL RECEIVE A FULL REFUND. BLUEJACK KIDS HAS NO OBLIGATION TO REFUND ANY AMOUNTS FOR SUBSCRIPTIONS CANCELLED MORE THAN SEVEN (7) DAYS AFTER PURCHASE.
5.3 Free or Promotional Trials. From time to time, to the extent legally permitted, we may offer free limited access or reduced rate promotional trials of certain Subscriptions for specified periods of time without payment or for a reduced promotional price. If we offer you a free or promotional trial, the specific terms of your free trial will be provided on our site or in the marketing materials describing the particular trial, during the registration process on BluejackKids.com, or when the code for the trial is entered on BluejackKids.com.
ONCE YOUR FREE LIMITED ACCESS OR REDUCED-RATE PROMOTIONAL TRIAL ENDS, YOUR ACCESS TO AND RIGHT TO USE FOR ALL PURPOSES THE SERVICE WILL AUTOMATICALLY END AS WELL, WITHOUT NOTICE FROM US. AT SUCH TIME (OR AT ANYTIME BEFORE THE END OF YOUR FREE OR REDUCED RATE PROMOTIONAL TRIAL), YOU HAVE THE OPTION TO PURCHASE A SUBSCRIPTION THROUGH THE PROCESS DESCRIBED IN THIS AGREEMENT. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE OR REDUCED-RATE PROMOTIONAL TRIALS AT ANY TIME, WITHOUT NOTICE, AND IN OUR SOLE DISCRETION.
5.4 Payment and Billing Information. By providing a payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you permit us (or our third-party payment processor) to charge your payment method for the total amount of your Subscription or other purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order. In the event you want to change or update payment information associated with your account, you can do so by calling, emailing or otherwise contacting us to adjust or edit your payment information. You acknowledge that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and you authorize us (or our third-party payment processor) to charge your payment method for the corresponding amount.
5.5 Pricing and Availability. All prices are shown in US dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Subscription, we will provide advance notice of such changes. We will not, however, be required to notify you of changes in any applicable taxes. All of our Service are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, or to discontinue offering certain Service, even if you have already placed an order.
5.6 Taxes. You are responsible for any sales, duty or other governmental taxes or fees due with respect to your purchase of a Subscription. We will collect applicable sales tax if we determine that we have a duty to collect sales tax. We will present any taxes that we are required to collect on your invoice, but note that actual taxes charged may be adjusted from the amount shown on the invoice. Several factors may cause this, such as variances between processor programs and changes in tax rates.
6. Your Privacy Obligations. You represent and warrant that: (a) that you have sufficient rights in You Data to grant the rights granted to Bluejack Kids in Section 2.2; (b) all of Your Data provided in connection with the Service is and will remain accurate and complete, and you will maintain and update such data as needed; (b) all of Your Data has been collected in accordance with Applicable Law (as defined in the Data Processing Addendum) including the provision of any required notice and the collection of any required consents necessary for Bluejack Kids’ provision of the Service and the; and (c) Bluejack Kids’ use of Your Data in accordance with this Agreement and on your instructions will not cause Bluejack Kids to violate any Applicable Law.
7. Feedback. You may provide Bluejack Kids with comments, suggestions, observations, information, and other feedback regarding the performance, features, and functionality of the Service, including in response to any surveys or questions posed by Bluejack Kids (collectively, “Feedback”). To the extent you voluntarily provide Feedback, you understand and agree that the Service-related data and information obtained or collected by Bluejack Kids in connection with such access will be non-confidential and part of any Feedback you provide under this Agreement. Bluejack Kids will own exclusive rights, including, without limitation, all intellectual property rights, in and to all Feedback and any resulting upgrades, updates, modifications, alterations, additions or changes to the Service based on the Feedback, and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
8. Support Resources. Bluejack Kids may provide certain support or maintenance resources for the Service during your Subscription. If you have any questions regarding the Service, please contact Bluejack Kids at 818-435-4774 or info@BluejackKids.com.
9. No Warranty. IN ADDITION TO THE WARRANTY DISCLAIMERS, YOU ACKNOWLEDGE AND AGREE THAT (A) THE SERVICE MAY CONTAIN BUGS, ERRORS, AND DEFECTS; (B) ACCESS AND USE OF THE SERVICE IS AT YOUR SOLE RISK; (C) THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU; AND (D) YOU SHALL HAVE NO CLAIM AGAINST BLUEJACKKIDS OR RIGHT TO ANY REFUND FOR ANY UPDATE, UPGRADE, MODIFICATION, ALTERATION, CHANGE, ADDITION TO OR DELETION FROM THE SERVICE OR WITH RESPECT TO ANY FEATURE, FUNCTIONALITY OR COMPONENT OF THE SERVICE. BLUEJACK KIDS SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF, OR INABILITY TO USE, THE SERVICE OR FOR ANY LOSS OF DATA. BLUEJACK KIDS DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS (COLLECTIVELY, “FAULTS”) OR IN A SECURE MANNER OR THAT ANY FAULTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, STATEMENT, REPRESENTATION OR ADVICE GIVEN BY BLUEJACK KIDS OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTY.
THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. TO THE EXTENT THOSE LAWS APPLY, THE EXCLUSIONS ABOVE MAY NOT APPLY TO YOU.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BLUEJACK KIDS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO YOUR ACCESS OR USE OR THE ACCESS OR USE BY ANY AUTHORIZED USER OF THE SERVICE (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM BLUEJACK KIDS, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION, FAULTS, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BLUEJACK KIDS’ RECORDS, PROGRAMS OR SYSTEMS), AND EVEN IF BLUEJACK KIDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ALL LIMITATIONS OF LIABILITY UNDER SECTION 10 WILL APPLY EVEN IF THE REMEDIES OTHERWISE PROVIDED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, FAIL OF THEIR ESSENTIAL PURPOSE, AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
11. Indemnification. To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Bluejack Kids and its employees, officers, and directors, from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Service; (b) your violation of this Agreement; (c) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (d) Authorized User access to or use of the Service or violation of this Agreement; or (e) Your Data (including, without limitation, the violation of any Applicable Law). You agree to promptly notify Bluejack Kids of any third-party Claims, cooperate with Bluejack Kids in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that Bluejack Kids will have control of the defense or settlement, at Bluejack Kids’ sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Bluejack Kids.
12. Term and Termination; Survival. The license granted under Section 2 shall be in effect from the date you first access the Service until the end of your Subscription. Either party may terminate this Agreement at any time, with or without cause, by providing written notice (email is sufficient) of termination to the other party. Upon such termination, the license granted under Section 2.1 will automatically terminate and you must promptly: (a) cease accessing and using the Service and any information related to the Service; and (b) destroy all information related to the Service in your possession or control. The following sections of this Agreement will survive any termination or expiration of this Agreement: Sections 1, 2.2, 3–15 and Exhibit A, Data Processing Addendum.
13. Severability. If any term, clause, or provision of this Agreement is held invalid or unenforceable, then that term, clause, or provision will be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision of this Agreement.
15. Contact. If you have any questions or concerns regarding the Service or this Agreement, please contact Bluejack Kids by email at firstname.lastname@example.org or by mail or phone at:
19528 Ventura Blvd, #217
Tarzana, CA 91356
EXHIBIT 1 TO
BLUEJACK KIDS DIGITAL CONTENT LICENSE AGREEMENT
DATA PROCESSING ADDENDUM
Last Updated: June 2021
This Data Processing Addendum (“Addendum”) supplements the Bluejack Kids Digital Content License Agreement (the “Agreement”), between You (“Customer”) and Bluejack Kids (“Bluejack Kids”), is effective as of the date You begin to implement use of the Service as defined in the Agreement (the “Effective Date”), and is hereby incorporated by reference into the Agreement. All capitalized terms not otherwise defined in this Addendum will have the meaning given to them in the Agreement. In the event of any inconsistency or conflict between this Addendum and the Agreement, this Addendum will govern. Customer and Bluejack Kids agree as follows:
1. Personal Information. In connection with providing the Service under the Agreement, Bluejack Kids will be Processing Personal Information on behalf of Customer. “Personal Information” means information that relates, directly or indirectly, to an identified or identifiable person (a “Data Subject”), which may include names, email addresses, postal addresses, or online identifiers, that Customer provides or submits in connection with the Agreement. For the avoidance of doubt “Personal Information” includes all information that falls under the definition of “Personally Identifiable Information” as that term is defined in the Family Educational Rights and Privacy Act and its implementing regulations, 20 U.S.C. §1232, 34 C.F.R. Part 99 (“FERPA”). As between Customer and Bluejack Kids, all Personal Information is the sole and exclusive property of Customer.
2. Bluejack Kids and Customer Responsibilities. The parties acknowledge and agree that: (a) Bluejack Kids is a processor and/or service provider, as applicable, with respect to Personal Information under Applicable Law (defined below); (b) Customer is a controller and/or business with respect to Personal Information under Applicable Law; and (c) each party will comply with the obligations applicable to it under Applicable Law with respect to the Processing of Personal Information.
3. Bluejack Kids Responsibilities. “Process” or “Processing” means any operation or set of operations which is performed on Personal Information, whether or not by automated means, such as the access, collection, use, storage, disclosure, dissemination, combination, recording, organization, structuring, adaption, alteration, copying, transfer, retrieval, consultation, disposal, restriction, erasure and/or destruction of Personal Information. As a part of providing the Service under the Agreement, Bluejack Kids:
(a) Process Personal Information solely in accordance with Customer’s documented instructions, including as contained within the Agreement and as necessary to provide the Service. Without limiting the foregoing, Bluejack Kids will not: (i) collect, retain, use, or disclose Personal Information for any purpose other than as necessary for the specific purpose of performing the Service, or as described in the Agreement, including use of the Personal Information for a commercial purpose other than providing the Service; and (ii) sell the Personal Information;
(b) Process Personal Information in accordance with laws, rules, and regulations that apply to Bluejack Kids’ provision of the Service under the Agreement, including, as applicable, the California Consumer Privacy Act (“CCPA”), FERPA, the Children’s Internet Protection Act, Pub. L. 106-554 (the “CIPA”), the Protection of Pupil Rights Amendment Act, 20 U.S.C. §1232h, 34 C.F.R. Part 98 (the “PPRA”), and Washington’s Public Records Act (the “PRA”), Chapter 42.56 RCW (collectively, “Applicable Law”);
(c) not disclose Personal Information to any third party, except to the extent prohibited by Applicable Law, (i) notifying Customer of the anticipated disclosure (so as to provide Customer the opportunity to oppose the disclosure and obtain a protective order or seek other relief); (ii) obtaining Customer’s prior consent to the disclosure; or (iii) imposing contractual obligations on the third party recipient that are at least reasonably equivalent to those obligations imposed on Bluejack Kids under this Addendum;
(d) amend, correct, or erase Personal Information at Customer’s reasonable written request and provide a means for Customer to update and make accurate Personal Information Processed by Bluejack Kids;
(e) notify Customer of any third-party request (by a Data Subject or otherwise) to (i) restrict the Processing of Personal Information; (ii) port Personal Information to a third party; or (iii) access, rectify, or erase Personal Information. Bluejack Kids will use commercially reasonable efforts to assist Customer, at Customer’s reasonable written request and expense, in complying with Customer’s obligations to respond to requests and complaints directed to Customer with respect to Personal Information Processed by Bluejack Kids;
(f) ensure that Bluejack Kids personnel Processing Personal Information are subject to obligations of confidentiality; and
(g) keep Personal Information logically distinct from other information of Bluejack Kids or its personnel, suppliers, customers or other third parties.
Bluejack Kids will use commercially reasonable efforts to inform Customer if Bluejack Kids becomes aware or reasonably suspects that Customer’s instructions regarding the Processing of Personal Information may breach any Applicable Law.
4. Subcontractors. Bluejack Kids will not engage another processor to process Customer’s Personal Information without authorization from Customer, which Customer hereby provides. Customer hereby provides its general written authorization for Bluejack Kids’ use of subcontractors to Process Personal Information on behalf of Customer.
5. Security Safeguards. Bluejack Kids will use commercially reasonable efforts to implement and maintain appropriate technical and organizational measures consistent with industry standards to protect and ensure the confidentiality, integrity, and availability of Personal Information.
6. Security Breach. If Bluejack Kids becomes aware of any actual Security Breach (defined below), Bluejack Kids will take commercially reasonable efforts to, without undue delay: (a) notify Customer of the Security Breach and any third-party legal processes relating to the Security Breach; and (b) help Customer investigate, remediate, and take any action required under Applicable Law regarding the Security Breach. “Security Breach” means any unauthorized acquisition of data that compromises the security, confidentiality, or integrity of Personal Information under Bluejack Kids’ possession or control. The obligations in this Section do not apply to incidents that are caused by Customer or Customer’s personnel or Authorized Users.
7.Return or Destruction of Personal Information. Upon written request by Customer or when Bluejack Kids no longer is required to Process Personal Information to fulfill its obligations under the Agreement, Bluejack Kids will use commercially reasonable efforts to (a) cease all use of Personal Information; and (b) return all Personal Information to Customer or, at Customer’s option, destroy all Personal Information and all copies thereof, except to the extent that Bluejack Kids is required under Applicable Law to keep a copy of Personal Information for a specified period of time.
8. Disclaimer. Bluejack Kids makes no representation or warranty that this addendum is legally sufficient to meet Customer’s needs under applicable law, including the CCPA, FERPA, CIPA, PPRA and PRA. Bluejack Kids expressly disclaims all representations or warranties, whether express, implied, statutory, through a course of dealing, or otherwise that this addendum will comply with or satisfy any of Customer’s obligations under applicable law. Customer fully understands that it is solely responsible for complying with all of its obligations imposed by applicable law. The parties agree that there will be no presumption that any ambiguities in this addendum will be construed or interpreted against the drafter.