Marker Learning saas terms of service

Last Updated: January 28, 2025

These Terms of Service (these “Terms”) are an agreement that describes your rights and responsibilities as a user of the AI-powered Software-as-a-Service (“SaaS”) tool made available by Jayne B. Company, doing business as Marker Learning (“Marker Learning,” “we,” or “us”)

This page explains the terms by which you may access and use our AI-powered SaaS tool and related documentation (collectively, the “SaaS Tool”). By accessing or using the SaaS Tool, you signify that you have read, understood, and agree to be bound by these Terms. In addition, you acknowledge that you have read and understood our Privacy Notice (attached below as “Exhibit B”). Marker Learning reserves the right to modify these terms and will provide notice of material changes as described below. These Terms apply to all users of the SaaS Tool (“Users”), including but not limited to Psychologists (as defined below).

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 12.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 12.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 12.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.

Our Services

The SaaS Tool is designed for use by school psychologists, licensed clinical psychologists, and other professionals who are eligible to write or assist with the writing and preparation of psychoeducational reports (collectively, “Psychologists”). Subject to these Terms, Psychologists may use the SaaS Tool to: (a) generate draft psychoeducational reports (“Reports”) using evaluation documentation that the Psychologists have uploaded, such as referral packets, Individualized Education Programs (“IEPs”), and assessment score reports; and (b) fulfill other case management purposes and related purposes, as may be permitted from time to time by the features and functionality of the SaaS Tool.

Eligibility
This is a contract between you and Marker Learning. You must read and agree to these terms before using the SaaS Tool. If you do not agree, you may not use the SaaS Tool. You may use the SaaS Tool only if you can form a binding contract with Marker Learning, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the SaaS Tool by anyone under 18 is strictly prohibited and in violation of these Terms. The SaaS Tool is not available to any Users previously removed from the SaaS Tool by Marker Learning.
Limited License
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the SaaS Tool as permitted by the features of the SaaS Tool. Marker Learning reserves all rights not expressly granted herein in the SaaS Tool and the Marker Learning Content (as defined below). Marker Learning may terminate this license at any time for any reason or no reason.
User Accounts
Your account on the SaaS Tool (your “User Account”) gives you access to the features and functionality that we may establish and maintain from time to time and in our sole discretion. If you open a User Account on behalf of a Marker Learning, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
By connecting to Marker Learning with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your User Account. You must notify Marker Learning immediately of any breach of security or unauthorized use of your User Account. Marker Learning will not be liable for any losses caused by any unauthorized use of your User Account.
By providing Marker Learning your email address you consent to our using the email address to send you service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the SaaS Tool and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the SaaS Tool in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the SaaS Tool in a manner that sends more request messages to the Marker Learning servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the SaaS Tool; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the SaaS Tool; (vii) collecting or harvesting any personally identifiable information, including account names, from the SaaS Tool; (viii) using the SaaS Tool for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the SaaS Tool; (xi) accessing any content on the SaaS Tool through any technology or means other than those provided or authorized by the SaaS Tool; or (xii) bypassing the measures we may use to prevent or restrict access to the SaaS Tool, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the SaaS Tool or the content therein.
Changes to the SaaS Tool
We may, without prior notice, change the SaaS Tool; stop providing the SaaS Tool or features of the SaaS Tool, to you or to Users generally; or create usage limits for the SaaS Tool. We may permanently or temporarily terminate or suspend your access to the SaaS Tool without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
Service Location
The SaaS Tool is controlled and operated from facilities in the United States. Marker Learning makes no representations that the SaaS Tool is appropriate or available for use in other locations. Those who access or use the SaaS Tool from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the SaaS Tool if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the SaaS Tool are solely directed to Users located in the United States.

User Content

Some areas of the SaaS Tool allow Users to submit, post, display, provide, or otherwise make available content such as evaluation documentation that the Psychologists have uploaded, such as referral packets, IEPs, and assessment score reports, other clinical documents, profile information, comments, questions, and other content or information. Any such content that a User submits, posts, displays, provides, or otherwise makes available on the SaaS Tool is referred to in these Terms as “User Content”.

WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS

By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the SaaS Tool, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Marker Learning a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the SaaS Tool and Marker Learning’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the SaaS Tool (and derivative works thereof) in any media formats and through any media channels.

For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

In connection with your User Content, you affirm, represent and warrant the following:

You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the SaaS Tool and these Terms.
You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
Your User Content and Marker Learning’s use thereof as contemplated by these Terms and the SaaS Tool will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Company may exercise the rights to your User Content granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.

You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the SaaS Tool, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Marker Learning shall not be liable for any damages you allege to incur as a result of or relating to any User Content.

Our Proprietary Rights

Except for your User Content, the SaaS Tool and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Marker Learning and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Marker Learning Content. Use of the Marker Learning Content for any purpose not expressly permitted by these Terms is strictly prohibited.

Marker Learning also reserves the right to collect, maintain, process, and use, or you may provide to Marker Learning, diagnostic, technical, usage, and related information, including information about your computers, mobile devices, systems, and software (collectively, “Usage Data”). You agree that all Usage Data is owned solely and exclusively by Marker Learning, and, to the extent any ownership rights in or to the Usage Data vest in you, you hereby assign to Marker Learning all rights, title, and interest in and to the same. Accordingly, Marker Learning may use the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to provide and maintain the SaaS Tool; (b) to monitor your usage of the SaaS Tool; (c) for research and analytics and for Marker Learning’s other business purposes; and (d) to share analytics and other derived Usage Data with third parties, solely in deidentified or aggregated form. The SaaS Tool may contain technological measures designed to prevent unauthorized or illegal use of the SaaS Tool. You acknowledge and agree that Marker Learning may use these and other lawful measures to verify your compliance with the terms of these Terms and to enforce Marker Learning’s rights, including all Intellectual Property Rights, in and to the SaaS Tool.

You may choose to or we may invite you to submit comments or ideas about the SaaS Tool, including without limitation about how to improve the SaaS Tool or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Marker Learning under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Marker Learning does not waive any rights to use similar or related ideas previously known to Marker Learning, or developed by its employees, or obtained from sources other than you.

Student Data

Data Definitions
When the SaaS Tool is used by educational institutions such as a school districts, school boards and individual schools within a district (each, an “Educational Institution”) or otherwise used for an educational purpose, Marker Learning may collect or have access to Student Data. “Student Data” is personal information related to students (“Students”) that is provided to Marker Learning that is maintained by an Educational Institution or related entity or organization, or by Marker Learning on behalf of such an entity or organization. Student Data may include “educational records” as defined by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g) (“FERPA”), “covered information” under California’s Student Online Personal Information Protection Act (“SOPIPA”), or other information protected by similar student data privacy laws.
Confidentiality
Marker Learning agrees to treat Student Data as confidential and not to share it with third parties other than as described in these Terms and in our Privacy Notice.
Student Data Ownership and Control
Marker Learning shall collect and process Student Data as a “school official” with a legitimate educational interest pursuant to FERPA, under the direction and control of the applicable Educational Institution. As between Marker Learning and an Educational Institution that enters into these Terms with us, the Educational Institution owns all right, title and interest to all Student Data processed by Marker Learning its behalf, and Marker Learning does not own, control or license such Student Data, except so as to provide the SaaS Tool and as described in these Terms.
Student Data Access
We process Student Data when a Psychologist or other User who is affiliated with an Educational Institution enters such Student Data through into the SaaS Tool. We also collect, receive and generate Student Data in connection with your authorized use of the SaaS Tool to generate Reports and manage ongoing cases. If you are an Educational Institution or affiliated User, you represent and warrant that you have the authority to provide Student Data to Marker Learning and authorize Marker Learning to collect Student Data for the purpose of providing the SaaS Tool, and that you have provided appropriate disclosures to the parents or legal guardian regarding your sharing of such personal information with Marker Learning.
Compliance with Student Data Privacy Laws
If you are an Educational Institution or affiliated User, you and Marker Learning each agree to uphold their responsibilities under laws governing personal information and Student Data, including, without limitation, FERPA, SOPIPA and the Protection of Pupil Rights Amendment (“PPRA”). Please note that we rely on Educational Institutions and affiliated Users to obtain and provide appropriate consent and disclosures, if necessary, to provide Marker Learning with Student Data for processing.
You are required to comply with these Terms and all regulations and laws governing the privacy of children and children’s personal information in your jurisdiction. You represent and warrant that you are in compliance with all applicable data protection laws governing the protection of personal information and the sharing of Student Data.
Use of Student Data
By submitting or otherwise providing us with access to Student Data, you agree that Marker Learning may use the Student Data solely: (a) to provide, maintain and support the SaaS Tool, (b) to develop and improve the SaaS Tool, to the extent permitted under student data privacy laws, (c) to provide recommendation engines to recommend content or services relating to school purposes or other educational or employment purposes, provided such recommendation is not determined in whole or in part by payment or other consideration from a third party; (d) to enforce our rights under these Terms, (e) to use aggregated Student Data for research purposes; and (f) as otherwise permitted with the Educational Institution’s, affiliated User’s or Parent’s consent.
Restrictions of Disclosure of Student Data
Marker Learning is prohibited from using Student Data to: (a) direct targeted online advertising to Students; (b) develop a profile of a Student other than for the purpose of providing educational services or as authorized by an Educational Institution, affiliated User or Parent; or (c) for any commercial purpose unless authorized by an Educational Institution, affiliated User or Parent or permitted by applicable law.
Use of De-Identified Information
You agree that we may collect and, both during and after the term of our agreement, use De-Identified Information for the purposes of development, research and improvement of our SaaS Tool and other educational sites, services and applications or technologies or as any other member of the public would be able to use De-Identified Information pursuant to FERPA, and that we may share such De-Identified Information with our vendors or other third-parties for such purposes. “De-identified Information” refers to data from which any direct and indirect identifiers have been removed or obscured in a way that minimizes the risk of disclosure of the identity of the individual. We agree not to attempt to re-identify De-Identified Information, and to contractually prohibit any third party to whom it is disclosed from doing so.
Marker Learning’s Third-Party Service Providers
You acknowledge and agree that Marker Learning may provide access to Student Data to our employees, affiliates and to certain third-party service providers which have a legitimate need to access such information in order to provide their services to us. We and our employees, affiliates, service providers or agents involved in the handling, transmittal, and processing of Student Data will be required to maintain the confidentiality of such data.
User-Requested Third-Party Access
Marker Learning may provide Users the ability to use and access third-party services through the Marker Learning Service, and to share data, including Student Data, with third parties through the SaaS Tool. You consent to allow us to provide access to Student Data to third parties through the SaaS Tool as directed by an authorized User. You acknowledge that we are not responsible for the data practices of third parties with whom you elect to share Student Data through the SaaS Tool, and that, as between us, you are solely responsible for the third-party content and the consequences of providing or transmitting Student Data to such third parties, or authorizing those third parties to access Student Data through the SaaS Tool.
Student Data Retention and Deletion Requests
Educational Institutions, affiliated Users or Parents may request that we delete or retrieve Student Data in our possession at any time by providing such a request in writing. We shall comply with such request within thirty (30) days; provided that we are not required to destroy any electronic copy of Student Data that is retained pursuant to Marker Learning’s standard electronic backup and archival procedures if (a) personnel other than information technology (“IT”) personnel do not have access to such retained copies and (b) IT personnel have access to such copies only as reasonably necessary for the performance of their IT duties (e.g., for the purposes of system recovery). We also are not required to delete data that has been de-identified such that it can no longer be used to identify an individual. If you are seeking to modify, correct or delete personal information about a Student without the requisite admin privileges over the Student Data, you will be instructed to contact the Educational Institution, affiliated User or Parent (as applicable) to discuss data deletion or modification. We do not delete or de-identify any Student Data associated with an active Educational Institution contract except at the direction of the Educational Institution. The Educational Institution is responsible for maintaining current student rosters and removing Student Data which the Educational Institution no longer needs for an educational purpose through the SaaS Tool itself, if applicable, or by submitting a deletion request. We will retain Student Data for a period of two years after termination of the contract to continue to provide the Educational Institution access to its records and aggregate reports, after which the Student Data will be deleted and/or de-identified, unless we receive a deletion request prior to that date.
Changes to Student Data Processing
We will use commercially reasonable efforts to provide at least thirty (30) days’ notice of any change that may involve collecting, using, storing or sharing Student Data in a materially different way than was disclosed to you previously, so that you have sufficient time to evaluate the change in practice. If you do not choose to accept the changes, you may opt-out by deleting your account before the changes take effect. You may request previous versions of these Terms by contacting us at hello@markerlearning.com.

Paid Services

Billing Policies. Certain aspects of the SaaS Tool may be provided for a fee or other charge. If you elect to use paid aspects of the SaaS Tool, you agree to our Pricing and Payment Terms, as we may update them from time to time. Marker Learning may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion.
No Refunds. You may cancel your User Account at any time; however, there are no refunds for cancellation. In the event that Marker Learning suspends or terminates your User Account or these Terms, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the SaaS Tool, any content or data associated with your User Account, or for anything else.
Payment Information; Taxes. All information that you provide in connection with a purchase or transaction with the SaaS Tool must be accurate, complete, and current. You agree to pay all charges incurred by users of your payment method used in connection with a purchase or transaction or other monetary transaction interaction with the SaaS Tool at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such purchases and transactions.
California Residents. The provider of services is Jayne B. Company, doing business as Marker Learning, 213-513-7510, 1500 Hudson St, Hoboken, NJ 07030, hello@markerlearning.com. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

IMPORTANT DISCLOSURES

Not for Emergencies
THE SAAS TOOL SHOULD NOT BE USED FOR MEDICAL EMERGENCIES. IN THE EVENT OF AN EMERGENCY, PLEASE DIAL 911 OR GO TO A HOSPITAL.
The SaaS Tool is not for medical emergencies or urgent situations. You should not disregard or delay to seek medical advice based on anything on the SaaS Tool. If you believe you have an emergency, please call 911 or go to a hospital immediately.
No Medical or Professional Advice from Marker Learning; No Doctor-Patient Relationship
Although the SaaS Tool generates draft Reports based on the User Content provided by Psychologists, Marker Learning does not directly or indirectly offer medical advice or other professional advice, and your use of the SaaS Tool does not create a doctor-patient, provider-patient or similar relationship between you and Marker Learning. Any information made available through the SaaS Tool is intended to be general information in regard to the subject matter covered, and any such information should not be considered complete, nor should it be relied on to suggest a basis for diagnosis or course of treatment. ANY ADVICE OR INFORMATION GENERATED BY THE SAAS TOOL SHOULD BE REVIEWED CAREFULLY BY A QUALIFIED PROFESSIONAL.

Text Messaging

You expressly consent and agree that Marker Learning can contact you using written, electronic, or verbal means, including by manual dialing, emails, leaving prerecorded/artificial voice messages or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you and to service your account and as the law allows, even if those phone numbers are registered by you on any federal or state Do-Not-Call/Do-Not-email registry

We offer you the chance to enroll to receive recurring SMS/text messages from Marker Learning. You may enroll to receive text messages about account-related news and alerts and/or marketing and promotional offers for Marker Learning products and services. By enrolling in Marker Learning’s SMS/text messaging service, you agree to receive text messages from Marker Learning to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such texts. You acknowledge and agree that the texts may be sent using an automatic telephone dialing system and that standard message and data rates apply. Consent is not required as a condition of purchase. Marker Learning is not responsible for any delays upon sending or receiving text messages.

To unsubscribe from text messages at any time, text STOP, QUIT, END, CANCEL, or UNSUBSCRIBE to 240-689-3077 or reply STOP, QUIT, END, CANCEL, or UNSUBSCRIBE to any text message you receive from Marker Learning. You consent that following such a request to unsubscribe, you may receive one final text message from Marker Learning confirming your request. For help, text HELP to 240-689-3077or contact us at hello@markerlearning.com

Third-Party Links and Information

The SaaS Tool may contain links to third-party materials that are not owned or controlled by Marker Learning. Marker Learning does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the SaaS Tool or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that these Terms and Marker Learning’s Privacy Policy do not apply to your use of such sites. You expressly relieve Marker Learning from any and all liability arising from your use of any third-party website, service, or content.

Indemnity

You agree to defend, indemnify and hold harmless Marker Learning and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the SaaS Tool, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the SaaS Tool with your unique username, password or other appropriate security code.

No Warranty

THE SAAS TOOL IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SAAS TOOL IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SAAS TOOL IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MARKER LEARNING OR THROUGH THE SAAS TOOL WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, MARKER LEARNING, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SAAS TOOL WILL MEET YOUR REQUIREMENTS; THAT THE SAAS TOOL WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SAAS TOOL IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SAAS TOOL IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SAAS TOOL.

FURTHER, MARKER LEARNING DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SAAS TOOL OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MARKER LEARNING WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARKER LEARNING, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SAAS TOOL. UNDER NO CIRCUMSTANCES WILL MARKER LEARNING BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SAAS TOOL OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARKER LEARNING ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SAAS TOOL; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SAAS TOOL; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SAAS TOOL BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SAAS TOOL; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL MARKER LEARNING, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO MARKER LEARNING HEREUNDER OR $50.00, WHICHEVER IS GREATER.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MARKER LEARNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Governing Law, Arbitration, and Class Action/Jury Trial Waiver

Governing Law. You agree that: (i) the SaaS Tool shall be deemed solely based in Delaware; and (ii) the SaaS Tool shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware. These Terms shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 12.2 and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MARKER LEARNING. This Section 12.2 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Marker Learning that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the SaaS Tool, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the SaaS Tool; or (d) any other aspect of your relationship or transactions with Marker Learning, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement tu are a new Marker Learning user, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting these Terms by emailing Marker Learning at hello@markerlearning.com with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.

For any Claim, you agree to first contact us at hello@markerlearning.com and attempt to resolve the dispute with us informally. In the unlikely event that Marker Learning has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware, unless you and Marker Learning agree otherwise. If you are using the SaaS Tool for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the SaaS Tool for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Marker Learning agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, any provision of these Terms, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.

Nothing in this Section shall be deemed as: preventing Marker Learning from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.

If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SAAS TOOL FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND MARKER LEARNING AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER MARKER LEARNING USERS. YOU AND MARKER LEARNING FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MARKER LEARNING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.

General

Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Marker Learning without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Notification Procedures and Changes to these Terms. Marker Learning may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Marker Learning in our sole discretion. Marker Learning reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. Marker Learning is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Marker Learning may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the SaaS Tool after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the SaaS Tool.
Entire Agreement/Severability. These Terms, together with any amendments and any additional agreements you may enter into with Marker Learning in connection with the SaaS Tool, shall constitute the entire agreement between you and Marker Learning concerning the SaaS Tool. Except as otherwise stated in Section 12.2, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Marker Learning’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Contact. Please contact us at hello@markerlearning.com with any questions regarding these Terms.