Terms and Conditions of Use

These terms and conditions apply to any services provided by Atomic Learning, Inc. or its affiliates (“Atomic Learning”) through its website or any affiliated websites, including any pages found at or under the atomiclearning.com domain (together, all pages are the “Website”). These terms and conditions apply to not only you, but also to any school district or other legal entity you purport to represent, and any administrator or end-user who obtains access by your actions, including students, their families, faculty and staff, whether intended or not (together “Customer”).

By use of any portion of the Website, Customer agrees to these Terms and Conditions. If Customer does not agree to all of the following Terms and Conditions, Customer should not use the Website and immediately should contact Atomic Learning.

1. License. Customer may only access the subscription portion of the Website during its paid subscription term and any renewal thereof (“Subscription Term”) and only from computers at locations authorised by Atomic Learning. During the term of a Customer’s subscription, Customer may download, for internal use only, files expressly provided by Atomic Learning for download via Atomic Learning-created links, but other than the foregoing, Customer shall not copy, download, store, publish, transmit, transfer, distribute, modify, or sell any information or data contained on or through the Website, including without limitation any movies or video content. Customer will not interfere with the Website in any way and will not use its access for any illegal or improper purpose. Except for data uploaded by Customer or otherwise expressly excepted on the Website, all right, title and interest in anything on the Website, including all copyrights throughout the world, are the property of Atomic Learning and it reserves all rights therein. Trademarks and other intellectual property rights are owned as set forth on the page entitled “Intellectual Property Rights” on the Website (currently found at http://www.atomiclearning.com/ iprights). Atomic Learning may change the features on the Website at any time in its sole discretion.

2. Responsibility for Access. In order to access some features of the website, Customer will have to create an account. When creating Customer’s account, Customer must provide accurate and complete information and is solely responsible for the activity that occurs on Customer’s account, and must notify Atomic Learning immediately of any breach of security or unauthorized use of Customer’s account. Customer is responsible for all access to the Website by Customer and its staff, students or other individuals at any location or by using Customer's equipment, or by using Customer's password, even if Customer did not authorise such use. Customer agrees to defend and indemnify Atomic Learning from any claims or damages relating to or arising out of any such access.

3. User Submissions

A. The Website may permit the submission of videos, documents or other data ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions with others. Atomic Learning does not guarantee any confidentiality with respect to any User Submissions. Customer accepts sole responsibility for its User Submissions and the consequences of posting or publishing them. In connection with User Submissions, Customer represents and warrants that it owns or has the necessary rights to use, and authorises Atomic Learning to use, all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms. By submitting the User Submissions to Atomic Learning, Customer grants Atomic Learning a license to use, reproduce, distribute and display the User Submissions in connection with the Website. Customer also grants each authorised user of the Website that is defined within Customer’s license to access Customer’s User Submissions through the Web site, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms. Atomic Learning does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and disclaims any and all liability in connection with User Submissions. Atomic Learning may remove such User Submissions and/or terminate a Customer’s access for uploading such material in violation of these Terms at any time, without prior notice and in its sole discretion.

B. In particular, if Customer is a copyright owner and believe that any User Submission or other content infringes upon its copyrights, Customer may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) A physical or electronic signature of a person authorised to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact Customer, such as an address, telephone number, and, if available, an e-mail address; (v) A statement that Customer has a good faith belief that use of the material in the manner complained of is not authorised by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that Customer is authorised to act on behalf of the owner of an exclusive right that is allegedly infringed. Atomic Learning’s designated Copyright Agent to receive notifications of claimed infringement is: Lisa Barnett, 15088 22nd Avenue NE, Little Falls, MN 56345: email: lbarnett@atomiclearning.com, fax: (603) 215-0106. Only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Atomic Learning customer service through info@learning.com. Customer acknowledges that if Customer fails to comply with all of the requirements of this Section 5(D), Customer’s DMCA notice may not be valid.

4. Privacy Policy. Customer also agrees to the terms of Atomic Learning’s Privacy Policy, which is published through a link at the Website (currently at http://www.Atomiclearning.com/ privacy) and is incorporated herein by reference. Atomic Learning’s Privacy Policy may change at any time, so Customer agrees to frequently check for any changes in the policy and to notify Atomic Learning immediately if it does not agree to any of the changes.

5. Third-party Websites and Links. The Website may contain links to third party websites that are not owned or controlled by Atomic Learning, and it has no control over, and assumes no responsibility for anything relating to third party websites.

6. Disclaimer of Warranties and Limitation of Liability. CUSTOMER ACCEPTS THE WEBSITE AND ALL SERVICES PROVIDED BY ATOMIC LEARNING “AS IS,” “WITH ALL FAULTS”, AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS. TO THE EXTENT PERMITTED BY LAW, AND EXCEPT FOR INTENTIONAL ACTS OR GROSS NEGLIGENCE, CUSTOMER WAIVES ALL CLAIMS AGAINST ATOMIC LEARNING FOR ANY CLAIMS RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE WEBSITE, OR ITS PERFORMANCE, REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT, STATUTORY OR NEGLIGENCE. IN ANY EVENT: (A) CUSTOMERS WAIVES ANY CLAIMS FOR LOST PROFITS OR OTHER CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, REGARDLESS OF THE FORESEEABILITY OF SUCH DAMAGES; AND (B) DAMAGES BY CUSTOMER AGAINST ATOMIC LEARNING ARE LIMITED TO SUBSCRIPTION FEES PAID BY THE CUSTOMER DURING THE PROCEEDING TWELVE MONTHS.

7. Terms and Termination. This Agreement remains in effect through the Subscription Term and any renewal thereof, and may be terminated for breach of this Agreement, upon which no refund of the Subscription Fees is due; or by Customer if Customer demonstrates that the Website and related services are not as promised or represented by Atomic Learning, but only if Customer provides Atomic Learning written notice within 60 days of the beginning of Customer's initial subscription. Upon receipt of such notice, Atomic Learning will provide Customer with a prorated refund. The provisions of this Agreement which by their nature are intended to survive termination or expiration of this Agreement shall survive expiration or termination of this Agreement, including without limitation the obligations and limitations set forth in sections 2, 3, 6, 8 - 13.

8. Changes to Terms and Conditions. Atomic Learning may change these Terms and Conditions at any time, and Customer agrees to frequently check the Website for such changes. Customer agrees that the latest Terms and Conditions at the Website will govern its rights and obligations with Atomic Learning, unless Customer informs Atomic Learning that it does not agree to the changes within 30 days of the changes being posted at the Website.

9. Governing Law and Venue. This agreement is made in and shall be governed by and construed in accordance with the laws of the State of Minnesota without reference to choice of law principles. Customer consents to exclusive jurisdiction and venue of the courts of Morrison County, Minnesota.

10. Taxes. Customer agrees to pay any sales, use or value-added taxes applicable to its Subscription.

11. Entire Agreement, No Additional Terms. This is the entire Agreement between the parties with respect to its subject matter and supersedes all prior agreements. Unless expressly accepted by Atomic Learning in writing, any other terms and conditions inconsistent herewith are not binding on Atomic Learning, including any terms and conditions contained in any of Customer's purchase orders or other documentation.

12. Ability to Accept Terms. Customer affirms that he or she is more than 18 years of age and is fully able and competent to enter into the and to abide by and comply with these Terms, and that he or she has full authority to bind any other users within the definition of “Customer” to any services provided on the Website, including the full authority to bind any school district or educational institution for which he or she is employed. If you are under 18 years of age and are a user of this Website, you are bound to these Terms and Conditions to the fullest extent permitted by the law, including because the person or entity through which you obtained subscription access to the Website has agreed to these Terms and Conditions on your behalf, whether that person is a school employee or a parent.

13. Other Provisions. Neither this Agreement nor any part may be assigned, sublicensed or otherwise transferred by Customer without Atomic Learning's prior written consent, except that either party may assign this Agreement: (a) to any legal entity in connection with the merger or consolidation of the assigning party into such entity or the sale or transfer of all or substantially all of the assets of the assigning party to such entity; or (b) to any direct or indirect subsidiary of the assigning party in connection with any corporate reorganization.

• This Agreement is binding upon and shall inure to the benefit of the legal successors and assigns of the parties.
• If any provision of this Agreement is found to be void, invalid, unenforceable or illegal, the validity and enforceability of the other provisions will not be affected and any unenforceable provision shall be modified and interpreted so as to best accomplish the intent of such provision.
• Neither party shall be deemed to be liable for any provisions under this Agreement for failures in performance resulting from acts or events beyond the reasonable control of the party.
• Failure to enforce any provision of this Agreement is not a waiver of the provision or of the right to enforce the provision later.