1. The Service
1.1 Prior to registering for the services (the “Service”) offered on Watermark’s Website (“the Website”), the End User (“you”) must agree to the following terms and conditions between you and Watermark, LLC (“Watermark”). The following is a binding contract between you and Watermark, which establishes your and Watermark’s rights, obligations and liabilities regarding your use of the Service (“the Agreement”).
2. Ownership of the Information, Materials and Software Comprising the Service
2.1 BY POSTING MATERIAL TO THE WEBSITE, YOU WILL NOT SURRENDER ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HOLD IN THE POSTED MATERIALS, OTHER THAN THE LIMITED LICENSE GRANTED TO WATERMARK AS SET FORTH IN SECTION 2.3. WATERMARK SHALL USE SUCH LICENSE FOR THE SOLE PURPOSE OF PROVIDING INFORMATION AND SERVICES TO END USERS HEREUNDER.
2.2 You expressly acknowledge and agree that you may compile and post to the Website materials comprised of text, data and images in the form of student materials, educational materials, and associated reports and data (called “Materials”) which may be made available to other users to enable them to download, reproduce and distribute such Materials (subject to any applicable restrictions authorized by the organization providing you the subscription).
2.3 Certain areas of the Service are provided for users to post and exchange ideas and information. Watermark does not take responsibility for any Materials posted or exchanged by users on the Service. The views and opinions expressed therein do not necessarily reflect those of Watermark or its content providers or licensors. If you make use of this facility you hereby represent and warrant that you have all necessary rights in and to any Materials you post and exchange on the Website, and that in doing so you will not infringe on any personal or proprietary rights of any third parties. Further, you understand that by posting or exchanging any Materials on the Service, you will be making these Materials fully accessible and available to third parties, who may be able to reproduce, distribute or alter these items (subject to any applicable restrictions authorized by the organization providing you the subscription). You hereby represent and warrant that doing any of these things in relation to the Materials you post or exchange does not and will not infringe the intellectual property or other rights of any third parties. You hereby grant to Watermark a perpetual, worldwide, royalty-free, non-exclusive license to use, reproduce, display, distribute and provide the Materials in connection with the Service. AS STATED IN SECTION 2.1, WATERMARK SHALL USE SUCH LICENSE FOR THE SOLE PURPOSE OF PROVIDING INFORMATION AND SERVICES TO END USERS HEREUNDER. Watermark may delete any inappropriate Materials posted on the Service (and alter and edit any Materials only so as to make the formatting correspond with the requirements of the Service).
2.4 In the event that you are of the view, or are in possession of any information concerning the infringement of the rights of any third party by the presence of any Materials on the Service, please notify Watermark at the following contact details:
Watermark Legal Department
71 West 23rd Street
New York, NY 10010
2.5 You hereby acknowledge that the Service is for educational purposes only. Therefore, you agree to use the Service for such purposes and not to post any inappropriate Materials. Watermark reserves the right to remove any item which, in the view of Watermark, is inappropriate. By way of illustration, and not limitation, such Material includes material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or racially, ethnically or otherwise objectionable.
2.6 Watermark retains ownership of the Service, including its technological components, including all intellectual property rights contained therein.
3. Use of the Information and Materials
3.1 The license granted herein is nonexclusive, personal to you and nontransferable. One User ID and Password is issued for your use alone. This User ID/Password may not be shared. If you are under the age of 18, you represent that you have obtained your parent’s or legal guardian’s consent to register for the Service. Users under the age of 13 are strictly prohibited from using the Service, unless they have received written permission from their parent, legal guardian or a teacher, and have forwarded such written permission to Watermark at the below address:
Watermark Legal Department
71 West 23rd Street
New York, NY 10010
3.2 You may access and use the Service from any computer at any location where there is an Internet connection. Further, you may store a certain amount of your materials on the Website for no additional charge.
3.3 Materials from the Service are intended for use by End Users only. You shall not be entitled to use the Materials as anything other than an aid or point of reference for educational activities.
3.4 Copyright law limits the rights of End Users to reproduce, use, sell, transmit, publish, broadcast, or otherwise disseminate or distribute Materials from the Service to anyone, including but not limited to others in the same company, school, college or other organization, whether or not for a charge or other consideration, including but not limited to use in connection with the sale, retransmission, distribution, publication, broadcasting, circulation or other dissemination, for any purpose, whether commercial or otherwise, without the express prior written permission of the Copyright owner or Watermark. The Service is a forum in which End Users may provide information useful to teachers and educators. Therefore, although the underlying purpose of the Service is to provide a forum for the development of educational resources, Watermark cannot guarantee to you that the reproduction and dissemination of information provided by other End Users will not constitute an act of copyright infringement. If you engage in any of the actions set out in this Section 3.4, you will be doing so entirely at your own risk.
5. This Agreement and Changes to It
5.1 Watermark may change any of the terms in this Agreement at any time. Changes will become effective when Watermark posts the modified Agreement on the Website. The End-User License link will be flagged any time changes are posted. If you do not agree to the changes, you may cancel your subscription to the Service in the manner described in Section 7. Continued use of the Service by you or any other subscriber under your license constitutes acceptance of the terms of the modified Agreement.
5.2 This Agreement is the entire agreement between Watermark and you with respect to the Service. Headings in this Agreement are for your convenience only and do not have any legal meaning or effect. If any part of this Agreement is invalid, the rest of this Agreement will remain in effect. If Watermark waives or fails to enforce any term or condition of this Agreement on any one or more occasions, whether by conduct or otherwise, its waiver or failure to enforce will not mean that it must waive or cannot enforce such term or condition on any other occasion, or any other term or condition of this Agreement. The meaning of this Agreement cannot be changed by your or Watermark’s conduct, even if repeated, or by any custom or practice of others engaged in the same or similar businesses.
6. Changes to Service
Watermark may change or discontinue any portion, feature or content of the Service at any time with or without notice to you. Likewise, Watermark may at any time, with or without notice to you, restrict the use and accessibility to the Service as well as limit the duration and amount of use made of the Service.
7. Subscription Rates, Other Charges, and Payment
Watermark may change the rates it charges for use of the Service (“Subscription Rates”) or add new Subscription Rates for parts of the Service that were previously free at any time. Such changes shall be effective immediately with respect to new subscriptions and renewals. Subscription payments are non-refundable.
8. Your Other Responsibilities Concerning Subscription to the Service
8.1 By subscribing to the Service under this Agreement, you represent and warrant to Watermark that:
8.1.1. the information you have provided to Watermark in order to register as a Subscriber is complete, accurate and current;
8.1.2. you will notify Watermark within 15 days of any change in your Subscriber information;
8.1.3. you will not share your User ID(s) and Password(s);
8.1.4. you are over the age of 18, or if you are under the age of 18 you have obtained the permission of your parent or legal guardian to subscribe for the services offered on this Service; and
8.1.5. you are not, under any circumstances other than those set forth in Section 3.1 herein, under the age of 13 and
8.2 If any of these certifications is or becomes untrue, or if you do not comply in full with these requirements, Watermark has the right to suspend and/or terminate your subscription to the Service.
8.3 You are responsible for complying with all terms and conditions of this Agreement, as modified from time to time by Watermark, and with any other rules and regulations of which Watermark gives you notice. You are also responsible for obtaining and using all computer hardware and software required for your access to and use of the Service and for any charges incurred for your own access to the Website through an Internet access provider or other third-party website.
8.4 You are responsible for all uses of the Service using your User ID and Password, whether the use is by you personally or by someone else. You are responsible for protecting and securing your User ID and Password from unauthorized use and disclosure. In the event that you become aware of or believe there has been any breach with respect to the foregoing, such as the theft or unauthorized use of your User ID and Password, you will notify Watermark immediately.
8.6 Watermark is designed solely for use as part of the educational process among teachers and students. Watermark is not intended to be used as a distribution or download service over the Internet outside of such processes. Watermark accounts and the features and services that make up Watermark’s tools are limited in terms of the bandwidth for network traffic and disk utilization for storage allocated to them. Widely exceeding reasonable bandwidth or capacity based on Watermark’s clients’ normal usage patterns is prohibited. If there is excess usage on your account, Watermark reserves the right to temporarily disable access to your account. Repeated violations may result in termination of your account.
9. Termination of Access
9.1 Watermark may terminate this Agreement immediately upon the expiration or termination of any Organization Subscriber Agreement governing the relationship between the entity that paid for your subscription and Watermark.
9.2 If you are a subscriber, your subscription commences the day you submit the subscription form and runs for the duration agreed upon by Watermark and the entity paying for the subscription. Your obligations under this Agreement will exist until said term expires or this Agreement is terminated or expires.
If you are a guest subscriber, your subscription commences the day your account is activated and runs for the following 14 days or earlier at Watermark’s sole discretion.
9.3 You may terminate this Agreement, and your rights to use the Service and your registration as an End User, at any time, and in your discretion, by notifying Watermark of your decision to terminate this Agreement.
9.4 Watermark may, in its sole and absolute discretion, and with or without notice, suspend your access to all or any part of the Service, or terminate this Agreement and thus your rights to use the Service, for any conduct or use (whether by you or anyone else having access under your User ID and Password) that Watermark believes is a violation of this Agreement or for any other conduct or use that Watermark believes is harmful to other subscribers, Watermark’s content providers, or to the Service or the interests of Watermark.
9.5 Upon termination of this Agreement for any reason: (a) all licenses hereunder shall immediately terminate, and (b) you shall immediately cease using the Service.
10. Your Remedies
10.1 If a currently valid User ID or Password fails to allow access to the Service, Watermark’s entire liability to you, and your sole and exclusive remedy, regarding the use of the Service shall be the issuing of a new User ID or Password.
10.2 Your sole right of recourse with respect to any disagreement or dissatisfaction with (a) this Agreement, as modified from time to time; (b) access to, use of, or performance of the Service, or (c) any Materials from or content accessible through the Service, is to terminate your subscription registration as an End User as provided for in Section 9.3.
11. Disclaimer of Warranties
11.1 THE SERVICE AND ALL INFORMATION, MATERIALS AND SOFTWARE ACCESSIBLE THROUGH THE WEBSITE ARE PROVIDED ON AN “AS-IS,” “AS-AVAILABLE” BASIS. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO PRODUCTS OR WEBSITES FURNISHED TO END USERS UNDER THIS AGREEMENT OR IN CONNECTION WITH THE WEBSITE. WATERMARK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NONINFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.2 Use of the Service is at your sole risk. Watermark does not warrant that the Service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Service, or as to the accuracy, reliability, completeness, or content of any information or Materials, Service, software or merchandise that may be provided through the Service. No statement, information or advice, including, but not limited to, statements regarding capacity, suitability for use or performance, whether made by a Watermark employee, reseller or other representative or otherwise, which is not contained in this Agreement shall be deemed to be a warranty by Watermark for any purpose or give rise to any liability of Watermark whatsoever, and you agree that you will not rely on any such statement, information or advice.
11.3 Where Watermark is a distributor, rather than a publisher, of the Materials accessible through the Service, Watermark exercises no more editorial control over such Materials than does a typical public library, bookstore or newsstand. The views and opinions expressed in such information do not necessarily reflect those of Watermark or its content providers or licensors. Neither Watermark nor its content providers or licensors make any warranties or representations regarding the accuracy, adequacy, truthfulness, completeness, or usefulness of such information.
11.4 Any dealings with advertisers on the Service or participation in any promotions and any other terms, conditions, warranties or representations made by such advertisers are solely between you and such advertiser. Watermark has no responsibility or liability for any part of any such dealings or promotions. Any links provided from the Website are to sites not under control of Watermark, and Watermark in no way endorses or shall have any liability arising from such sites or the products or services offered therein. Watermark does not endorse any such linked sites.
12. Limitation of Liability
12.1 UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WATERMARK BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES THAT ARISE FROM LOSS OF ANTICIPATED REVENUE, LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS AND INJURY TO PROPERTY, EVEN IF WATERMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THAT ARISE IN CONNECTION WITH OR RESULT FROM YOUR USE OF OR INABILITY TO USE THE SERVICE INCLUDING, BUT NOT LIMITED TO, RELIANCE ON ANY MATERIALS, CONTENT, INFORMATION, WEBSITES, SOFTWARE OR PRODUCTS OBTAINED ON THE WEBSITE, OR MISTAKES, OMISSIONS, INTERRUPTIONS, COMMUNICATIONS FAILURE, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, OR THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR WEBSITES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND IN SUCH STATES WATERMARK’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. If, notwithstanding the foregoing, Watermark is held liable for damages, then regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), in no event shall the maximum liability of Watermark or its affiliates, directors, officers, shareholders, employees, agents or third party providers exceed the aggregate dollar amount paid by you in the twelve (12) month period preceding the date of the claimed injury or damage.
13. Indemnification by You
You shall, at your sole cost and expense, indemnify, defend and hold harmless Watermark and its affiliates from and against all claims by third parties and pay all costs, including reasonable attorneys’ fees, and damages resulting from such claims arising out of: (a) your use of the Service, (b) any breach of this Agreement by you, (c) violation of any law or regulation by you, or (d) the infringement, misappropriation or violation by you of any patent, copyright, trademark, trade secret or other proprietary or privacy right of a third party.
14. Compliance with United States Export Requirements
This Agreement and your use of the Service are subject to any laws, regulations, orders or other restrictions on export from the United States of America of certain materials and technical data which may be imposed from time to time by the U.S. Government. Therefore, you will not transfer, directly or indirectly, by electronic means or otherwise, any Materials or information contained therein, or any direct products thereof, to any country, or to any agent, representative, or foreign national of any country, for which the U.S. Government or any agency thereof requires an export license or other governmental approval at the time of export without first obtaining such license or approval.
Watermark may give notice to you by electronic mail, by a posting on the Service, or by conventional mail. Notice by Watermark shall be effective on the date that Watermark makes a good faith effort to reach you. You shall give notice to Watermark as stated below. Notice by you shall be effective on the date that Watermark actually receives the notice.
via telephone: 1.800.311.5656 or 1.212.868.2700
via email: firstname.lastname@example.org
via U.S. mail: 71 W. 23rd Street, New York, NY 10010
16.1 This Agreement is personal to you, and you may not assign, transfer or delegate your rights or obligations to anyone. This Agreement, your and Watermark’s rights and obligations, and any disputes or disagreements regarding the Service will be governed by the laws of the U.S. and the State of New York that govern contracts wholly entered into and wholly performed within New York. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any and all actions, disputes or controversies relating to the Agreement or the Service will be decided by the courts of the State of New York and the U.S. located in New York, New York, and you consent to the jurisdiction and venue of those courts and irrevocably consent to service of process, delivered personally or mailed by certified or registered mail, return receipt requested, at the address set forth in your Subscriber information.
16.2 In the event that any provision of this Agreement is held to be invalid or unenforceable, pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
16.3 You acknowledge that Watermark will be irreparably harmed by any breach of this Agreement by you or by your unauthorized use of the Materials or the Service and, further, that monetary damages may not be a sufficient remedy for such harm. You agree that Watermark shall be entitled, without waiving any other rights or remedies and without further demonstration of irreparable harm or the inadequacy of monetary damages, to obtain injunctive or other equitable relief in the event of any breach of this Agreement by you or by your unauthorized use of the Materials or the Service.
16.4 If any party to this Agreement is rendered unable, wholly or in part, by force majeure to carry out its obligations under this Agreement, that party shall give to the other party prompt written notice of the force majeure event; thereupon the obligations of the party giving the notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected party shall use all reasonable diligence to remove the force majeure situation as quickly as practicable. The term “force majeure” as herein contemplated, shall mean an act of God, strike, lockout, or other industrial disturbance, act of the public enemy, war, blockade, public riot, plague, lightning, fire, storm, flood, earthquake, explosion, governmental action, governmental delay, restraint or inaction, unavailability of equipment or supplies and any other cause, whether of a kind specifically enumerated above or otherwise which is not reasonably within the control of the party claiming suspension.