This LiveSchool User Agreement (”Agreement”) is between LiveSchool, Inc. (“LiveSchool”) and you (hereinafter referred to as “User”, “You”, or “you”). By using the LiveSchool website, application and/or service (collectively, the “Service”), you accept the terms of this Agreement and hereby represent and warrant that you are an instructor, teacher, administrator, staff, employee or other representative of an educational institution or site located in the United States (“Site”) and are eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICE. This Agreement governs your use of the Service and affects your legal rights and obligations.  By clicking the “I Agree” button and accepting this Agreement, you agree to and are bound by the terms, conditions, policies and notices contained in this Agreement, including without limitation conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, arbitration and a choice of Tennessee law.  If you do not agree to be bound by all of the terms contained in this Agreement, do not click on the “I Agree” button and do not access or use the Service. You agree that use of any third-party features, services, or content either in or accessible in connection with the Service shall be subject to any applicable third party terms and conditions, disclaimers and disclosures.

YOU ACKNOWLEDGE AND CONFIRM THAT (A) YOU HAVE READ AND UNDERSTAND ALL OF THE ABOVE TERMS, CONDITIONS, POLICIES, PROVISIONS, DISCLOSURES AND DISCLAIMERS, (B) THAT THIS AGREEMENT HAS THE SAME FORCE AND EFFECT AS A SIGNED AGREEMENT, AND (C) THAT YOU EXPRESSLY AGREE TO BE BOUND BY THE TERMS HEREOF.

WE MAY REVISE AND UPDATE THIS AGREEMENT AT ANY TIME.  PLEASE PERIODICALLY REVIEW THIS AGREEMENT POSTED ON THE SERVICE BECAUSE YOUR USE OF THE SERVICE IS GOVERNED BY THIS AGREEMENT. TO THE EXTENT ANY MODIFICATION TO THIS AGREEMENT MATERIALLY AFFECTS YOUR RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, THE UPDATED AGREEMENT WILL BE PRESENTED TO YOU UPON YOUR NEXT LOG-IN TO THE SERVICE AND YOU WILL BE REQUIRED TO ACCEPT THE UPDATED AGREEMENT BEFORE PROCEEDING TO THE SERVICE.

1.1        Subject to the terms and conditions herein, LiveSchool hereby grants User a limited, revocable, personal, non-exclusive, non-transferable right to access and use the Service during the trial period designated by LiveSchool in its sole discretion solely for User’s Site-related classroom management activities in the United States. User agrees to provide all requested assistance to LiveSchool in the implementation and functionality of the Service.

1.2        If you have signed up to use the Service on a free trial basis, LiveSchool may terminate this Agreement and your access to the Service without notice to you upon the end of the trial period designated by LiveSchool in its sole discretion.  In no event may more than three users located or employed at a Site have an account to access or use the Service on a free trial basis at any given time. User acknowledges and agrees that the Service offered on a free trial basis may not include all features and functionality offered under a paid subscription basis

1.3        In order to use the Service, you are required to have registered and set up a user account to access the Service and you must be located in the United States and may only access the Service while located in the United States.  In addition, if you are using the Service on a free trial basis, (i) a Site Leader (the “Site Leader”) must register and set up an account for teachers, faculty and staff employed by and located at the Site (“Site-Wide Account”) to access the Service; and (ii) you are required to have registered and set up a user account under the Site-Wide Account to access the Service and your account must be approved by the Site Leader.  Regardless of what type of account you have, you must provide a valid email address as well as the name and address of the Site at which you work and Site address to LiveSchool in order to register and set up a user account to access the Service. By maintaining a user account to access the Service, you agree to (a) provide LiveSchool with accurate and complete information, (b) promptly update your account information with any new information that may affect the operation of your account, and (c) only use your one user account.  You may not use false identities or impersonate any other person or use an email address, username or password that you are not authorized to use. You may not set up or access multiple user accounts. Please notify us as soon as possible at support@liveschoolinc.com of any known or suspected unauthorized use(s) of your account or email address, or any known or suspected breach of security, including but not limited to loss, theft or unauthorized disclosure of your password. You are responsible for all usage or activity on your Service account and/or under your email address.  You may only use two (2) devices at any given time to access and use the Service.

1.4        You represent and warrant to LiveSchool that: (i) all registration and account information you submit is accurate and truthful; (ii) if you are accepting this Agreement on behalf of a Site or other legal entity, you have the authority to bind that Site or legal entity to this Agreement; and (iii) you are legally permitted to use and access the Services, have permission from your Site to enter into this Agreement and use the Service in connection with your classroom management activities, and have all necessary rights and consents to provide to LiveSchool any and all information, data and materials you submit through or using the Service.  To the extent the Site or other legal entity has a separate agreement with LiveSchool (a “Master Agreement”), the Master Agreement shall govern; provided, that you remain individually bound by this Agreement with respect to your use of the Services. You acknowledge and agree that you take full responsibility for your use of and access to the Service.  This Agreement is void where prohibited by law, and the right to access the Service is revoked in such jurisdictions.  If you are a Site Leader, in order to set up a Site-Wide Account and use the Service, you agree that you are responsible for the acts and omissions of all users under the Site-Wide Account.

1.5        LiveSchool reserves all rights with respect to the Service. LiveSchool may from time to time modify, change and/or remove any functionality available through the Service. Only one (1) Site-Wide Account is permitted per Site. Unless applicable law gives you more rights despite this limitation, you may use the Service only as expressly permitted in this Agreement. In doing so, you must comply with any technical limitations in the Service that only allow you to use it in certain ways and you agree to comply with all laws, rules and regulations applicable to your use of the Service.  You agree not to provide access to the Service to any third party, in whole or in part, except as expressly allowed by an authorized representative of LiveSchool. You agree not to rent, lease, distribute, lend or use the Service for commercial purposes.

1.6        To the extent that User provides any information, including but not limited to personal information or information related to any student of the Site, to LiveSchool or its representatives or accesses or seeks access to any such information through the Service, User represents, warrants and covenants that (i) User is providing or accessing only User’s own information or the information of others which User is authorized to provide to third parties, and User has all required consents and permissions required to share such information with LiveSchool; and (ii) the use of such information by LiveSchool and its representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third parties, or violate any applicable law, rule or regulation, including without limitation the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232(g) and rules and regulations promulgated thereunder.

1.7        NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT TO THE EXTENT USER SUBMITS, PROCESSES OR TRANSMITS ANY EDUCATION RECORDS OR PERSONALLY IDENTIFIABLE INFORMATION OF A STUDENT (AS SUCH TERMS ARE DEFINED IN 34 CFR § 99.3) IN OR THROUGH THE SERVICE, USER HAS OBTAINED ALL NECESSARY PERMISSIONS, CONSENTS, LICENSES AND AUTHORIZATIONS NECESSARY TO TRANSMIT, UPLOAD AND OR/USE EDUCATION RECORDS AND/OR STUDENT PERSONALLY IDENTIFIABLE INFORMATION IN CONNECTION WITH THE SERVICE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.  

1.8        LIVESCHOOL HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE USE OR TRANSMISSION OF EDUCATION RECORDS AND/OR STUDENT PERSONALLY IDENTIFIABLE INFORMATION IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT. User understands and agrees that the Service will be acting solely as a conduit for managing and processing any such information received under this Agreement. LiveSchool shall not disclose any education records or student personally identifiable information to any other party.

1.9        User acknowledges and agrees that User is solely responsible for establishing and maintaining procedures and controls necessary to maintain the integrity and continuity of User’s operations of the Service, including without limitation backup of User’s data and necessary updates of User’s device software and equipment used to access the Service. As a condition of use of the Service, User agrees that in the event of an error in the Service, a designated LiveSchool representative shall, in LiveSchool’s sole discretion, be permitted to access User personal information as reasonably necessary to correct such error and to ensure continued service levels.

User understands that the Service may contain, errors, “bugs” and other problems, which may result in system failure or failure in the use of the Service or loss of data or access by third parties to personally identifiable information or education records provided to LiveSchool or obtained by User or on User’s behalf through use of the Service. The Service may not be continuously available due to maintenance or repairs or due to computer, equipment or device problems or crashes, disruption in Internet service or other unforeseen circumstances beyond LiveSchool’s control. Further, a reference to a product or service on or in the Service does not imply that such product or service is or will be available.  The Service, including without limitation all documentation, training and guidance materials provided to or accessed by User in connection with the Service (collectively, “Documentation”), is provided to User “AS IS”, “WITH ALL FAULTS”, and LiveSchool disclaims any warranty or liability obligations to User of any kind. Without limiting the foregoing, User acknowledges and agrees that in no event shall LiveSchool be responsible or liable for (i) maintaining, storing or transmitting data generated through User’s use of the Services, including without limitation data input by User regarding students’ behavior; and (ii) any changes or modifications to settings for the Service or modified functionality in connection with the Site’s adoption of and subscription to the fee-based model of the Service.  THE SERVICE AND DOCUMENTATION ARE NOT INTENDED IN ANY WAY TO BE A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OF AN EDUCATOR, TEACHER OR SCHOOL, DISTRICT OR SITE ADMINISTRATOR.  LiveSchool DOES NOT MAKE ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTY OR CONDITION OF ANY KIND FOR THE SERVICE and/or documentation INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION WITH REGARD TO THE SERVICE’S and/or documentation’s PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SECURITY, NON-INFRINGEMENT, DATA OR SYSTEM INTEGRITY, DATA ACCURACY, OR RESULTS THAT MAY BE OBTAINED FROM OR THROUGH THE SERVICE and/or documentation.  

IN NO EVENT WILL LiveSchool OR ANY OF ITS REPRESENTATIVES BE LIABLE TO USER OR ANY OTHER PARTY FOR PUNITIVE, EXEMPLARY, INCREASED OR AGGRAVATED DAMAGES OR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING ANY LOSS OF PROFITS OR INVESTMENT, LOSS OF BUSINESS, CORRUPTION, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES of any kind EVEN IF LiveSchool OR ANY OF ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER ACKNOWLEDGES AND AGREES THAT IT BEARS THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, RELIABILITY AND PERFORMANCE OF THE SERVICE and documentation and the use and traNSmission of all data THAT user uploads, submits OR ACCESSES through the service, including without limitation EDUCATION RECORDS AND/OR STUDENT PERSONALLY IDENTIFIABLE INFORMATION.

IT IS USER’S SOLE RESPONSIBILITY TO BACK-UP ALL DATA, INCLUDING WITHOUT LIMITATION EDUCATION RECORDS AND PERSONAL INFORMATION, INPUT, SUBMITTED OR OTHERWISE PROVIDED THROUGH THE SERVICE BY USER, AND USER ACKNOWLEDGES AND AGREES THAT LIVESCHOOL SHALL NOT BE RESPONSIBLE OR LIABLE FOR PROVIDING ANY COPIES THEREOF TO USER.  IF USER IS USING THE SERVICE ON A FREE TRIAL BASIS, USER ACKNOWLEDGES AND AGREES THAT UPON CONCLUSION OR TERMINATION OF THE TRIAL PERIOD OR TERM, AND IN THE EVENT THE SITE LEADER TRANSFERS OWNERSHIP OR CONTROL OF THE SITE-WIDE ACCOUNT, ANY AND ALL DATA, INCLUDING WITHOUT LIMITATION EDUCATION RECORDS AND PERSONAL INFORMATION, INPUT, SUBMITTED OR OTHERWISE PROVIDED THROUGH THE SERVICE BY USER MAY BE DELETED AND DESTROYED, AND COPIES OF SUCH INFORMATION AND DATA MAY NOT BE AVAILABLE TO SHARE WITH USER.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND SO PARTS OF THE ABOVE LIMITATION MAY NOT APPLY TO USER. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS agreement IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND LIVESCHOOL BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED, LIVESCHOOL’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND WHETHER INCURRED WITH RESPECT TO ONE CLAIM, OR CUMULATIVELY INCURRED FROM MULTIPLE RELATED OR UNRELATED CLAIMS ARISING UNDER THIS AGREEMENT, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00 USD).

3.1        The Service may include comments capabilities, bulletin boards and other interactive areas (“Interactive Areas”) on or in the Service. You are solely responsible for your own communications, comments, submissions and posted materials and the consequences of posting those communications, comments, submissions and materials, including without limitation any and all education records (as that term is defined FERPA 34 CFR § 99.3) you create or that are created under your account in connection with the Service (collectively, “Material”). We do not assume any responsibility for the truthfulness, accuracy or reliability of any Material posted on any Interactive Area, or of consequences of any Material or Interactive Area communications on or arising from use of the Service.

3.2        You are solely responsible for your interaction with other users of the Service, whether online or offline. You acknowledge and agree that Material you submit or upload may be searchable and viewable by LiveSchool and other users employed by the Site. You agree that LiveSchool is not responsible or liable for the conduct of any user. LiveSchool reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post any Material on any Interactive Area.

3.3        User acknowledges and agrees that User may be providing certain feedback, statements, suggestions and ideas (“Ideas”) to LiveSchool, directly or through a third party, in connection with User’s use of the Service, which LiveSchool may use in future modifications to the Service, multimedia works and/or advertising and promotional materials relating thereto. In addition, User acknowledges and agrees that LiveSchool will have access to certain analytic and demographic data (“Data”) with respect to User’s use of the Service. In consideration of your access to the Service, User hereby irrevocably assigns to LiveSchool any and all rights, title and interest in any Ideas and Data, including but not limited to any copyright, patent right, moral right, and all other intellectual property rights. You agree to execute and deliver such other documentation and take such actions as LiveSchool may deem necessary or desirable to carry out and/or effectuate the assignment of rights in and to the Ideas and Data set forth in this section and assist LiveSchool in exercising all rights and enjoying all benefits with respect thereto.

3.4        User acknowledges and agrees that submission of Material, Ideas and Data to LiveSchool, either orally or in writing, will not in any way establish a confidential relationship with LiveSchool, nor will it place LiveSchool in the position of receiving a disclosure in trust. LiveSchool will not be obligated and makes no commitment to treat or maintain Ideas which User submits as confidential. In addition, User does not expect nor will User receive any type of payment or remuneration from LiveSchool for Ideas or Data. User agrees that all documents and materials submitted to LiveSchool will become the property of LiveSchool, unless LiveSchool agrees otherwise in writing. No obligation is assumed or may be implied on the part of LiveSchool by receipt or examination of the Idea or Data submission to use the Ideas and Data, compensate User, or otherwise enter into another agreement with User.

4.1        This Agreement shall commence on the date you click on the “I Accept” button and shall continue until terminated in accordance with the provisions herein. User may terminate this Agreement at any time by ceasing all use of the Service. LiveSchool may terminate this Agreement and your access to the Service at any time, for any reason (including without limitation if User fails to comply with any term or condition of this Agreement or the Master Agreement, if applicable, or upon the expiration of the trial period designated by LiveSchool in its sole discretion) and without notice to you.  You understand and acknowledge that upon termination of your access to the Service, you will no longer have access to any materials, information or data, and all such materials, information and data may be deleted or destroyed by LiveSchool in its discretion.   

4.2        Only teachers, administrators, staff and employees of the Site may use the Service on the Site’s behalf. Upon termination of your employment or relationship with the Site, this Agreement and your access to the Service shall immediately terminate.

4.3        Upon termination of this Agreement, User shall immediately cease all use of the Service. The provisions of Sections 1.3, 1.4, 1.7, 2, 3, this Section 4, 5, 6, 7, and 8 shall survive any termination of this Agreement.

The Service and any intellectual property, information, data or other materials furnished or provided to User by LiveSchool (“LiveSchool IP”) in connection with this Agreement are the sole and exclusive property of LiveSchool, and are available to User solely for purposes of User’s use of and access to the Service in accordance with the terms of this Agreement. Except for the limited rights granted herein, nothing in this Agreement shall transfer to User any right, title, or interest in or to any LiveSchool IP. Without limiting the generality of the foregoing, User agrees that User shall not (i) modify, alter, adapt, translate, copy or create derivative works or any functionally similar service or software based on the Service or other LiveSchool IP, or attempt to merge the Service or other LiveSchool IP into any other program, software, or application; (ii) reverse-engineer or otherwise attempt to obtain or perceive the source code of the Service or other LiveSchool IP (or any component thereof); (iii) build a competitive product service using all or any portion of the LiveSchool IP; (iv) copy any ideas, features, functions or graphics of the LiveSchool IP; or (v) remove, change or obscure any identification marks or notices of proprietary rights and restrictions on the LiveSchool IP or any elements of the LiveSchool IP.  User acknowledges that a breach of this Section 5 would cause irreparable harm to LiveSchool, the extent of which would be difficult to ascertain and for which money damages would not be accurate. Accordingly, User agrees that, without limiting any other remedies to which LiveSchool may be legally entitled, LiveSchool shall have the right to obtain immediate injunctive relief in the event of a breach or threatened breach of this Section 5 by User without the posting of bond or showing of irreparable harm.

User agrees to indemnify and hold LiveSchool, its affiliates, officers, employees and agents harmless from and against any and all claims, costs, demands, liabilities, suits, or actions (including all reasonable expenses and attorneys’ fees) for any loss, damage (including incidental, punitive, exemplary, consequential, and special), injury, or other casualty of any kind whatsoever arising out of or resulting from User’s use of or access to the Service or any act or omission by you or under your account or email address.

7.1        We provide the following privacy policy in this Section 7 (the “Privacy Policy”) in order to demonstrate our firm commitment to privacy. This Privacy Policy applies only to information collected through the Service and not to information collected offline. Questions regarding this Privacy Policy should be directed to LiveSchool by email at support@liveschoolinc.com.

7.2        There are two kinds of information that we may obtain about you: (1) Anonymous Information and (2) Personally Identifiable Information.

(i)  Anonymous Information – “Anonymous Information” is data in a form that does not permit direct association with any specific individual. Anonymous Information is aggregate data that websites and applications use to administer their sites and services and the contents thereon and therein. This Anonymous Information comprises information that cannot be used to identify or contact you, and may include such information as your browser or device type or your Internet Protocol (IP) address (if not deleted, clipped or anonymized), log file information, cookie information, web beacons and similar tracking technologies. You can change your browser or device settings to prevent cookies or notify you whenever you are sent a cookie. However, if you disable or block cookies on your browser or device, the features on our Service may not work correctly. LiveSchool also collects and uses city and state location information about Users. LiveSchool may from time to time retain third parties to help us collect and aggregate information.

(ii)  Personally Identifiable Information – In connection with the Service, we and our providers collect and/or use certain information that can be used to identify or contact you, including without limitation your personal information for maintaining your account (such as your user name, email address, phone number, first and last name, Site name and address, and a photograph or avatar).  In addition, when you post or submit information or otherwise provide communications, comments or other materials to the Service, all such information is collected by us or our providers in order to provide the Service. By using certain features of the Service, you will also be providing additional personal information to LiveSchool, including without limitation your location, members of your network, and your usage patterns of the Service. Further, when you contact us, we may ask for your name, password, email address and/or other information regarding your account so we may process and respond to your request.   

7.3        Anonymous Information is used internally for the administration, troubleshooting, data analysis, auditing, and research of our Service to help improve the quality, design and information provided to you. Some examples of the kinds of Anonymous Information we may collect include device identifiers, information about your usage of features of the Service and other data generated during your interactions with the Service. We may share such aggregated, non-personally identifiable information, such as demographics and general analytics regarding usage of the Service, with existing and prospective business partners, clients and advertisers.  We never connect aggregate information with personally identifiable information, and none of the Anonymous Information we share will contain any information that identifies you individually.

7.4        We collect personally identifiable information about users only when the user voluntarily provides such information, including patterns of application usage. (Personally identifiable information is any information that can be used to identify or contact a specific individual and any other information about that individual.)  We may be required to transfer or disclose personally identifiable information to third parties without prior consent if required by law, such as a court-ordered subpoena, search warrant, or other court order, or if required by exigent circumstances. Without limiting the foregoing, we may share your personally identifiable information with representatives of the Site (including without limitation the Site administrators), solely in connection with your use of the Service. We also may use (and may contract with carefully selected third-party service providers to help us use) your profile information on an aggregate basis – without personal identifiers – and other usage information that is useful in developing new features and content for the Service.  Some examples of the usage information we may collect and use on an aggregate basis include without limitation using and publishing anonymized data that is not identifiable by student or user but may be identified by state and/or Metropolitan Statistical Area (MSA) (e.g., average positive to negative comment ratio for elementary schools in Houston, Texas); and analysis of narrative comments recorded by users (e.g., frequency of certain words appearing in comments). In addition, we reserve the right to use and publish city, state, and school name of active LiveSchool sites, including the Site. You understand and agree that your information and data provided by or otherwise collected or generated in connection with your use of the Service, including without limitation personally identifiable information is subject to the rights and licenses granted to LiveSchool herein.

7.5        As LiveSchool continues to develop the Service and business, we may buy, merge or partner with other companies or businesses, and in so doing, acquire customer information.  In such transactions, information collected through the Service may be among the transferred assets.  Similarly, in the unlikely event that a portion or substantially all of our assets are sold or transferred to a third party, such information would likely be one of the transferred business assets.

7.6        Protecting the privacy of children is very important to us. The Children's Online Privacy and Protection Act of 1998 (“COPPA”) defines a “Child” as anyone under the age of 13.  We strictly adhere to COPPA. For that reason, we do not collect or maintain information obtained through the Service from those we actually know are under 13, and no part of the Service are structured to attract anyone under 13.

7.7        Under California law, individuals that reside in California and have provided their personal information to LiveSchool may request information about our disclosures of certain categories of personal information to third parties for their direct marketing purposes. In response to your written request, we will provide a list of the categories of personal information disclosed to third parties for third-party direct marketing purposes during the immediately preceding calendar year, along with the names and addresses of these third parties. If you would like to exercise your rights under California law, please send your written request to LiveSchool, Inc., 615 Main Street, Suite 202, Nashville, TN 37206, Attn: Support. We reserve our right not to respond to requests submitted other than to above-referenced address.  Your request must include your postal address so that we may provide you with our notice and third-party direct marketing opt-out form.

8.1        This Agreement shall be governed in all respects by the laws of United States and the State of Tennessee, excluding its conflicts or choice-of-law provisions.  You agree that any dispute arising out of or relating in any way to this Agreement or the Service requires that such claim be resolved exclusively by confidential binding arbitration except that, to the extent you have in any manner violated or threatened to violate LiveSchool’s intellectual property rights, LiveSchool may seek injunctive or other appropriate relief. The arbitration shall be conducted in Nashville, Tennessee in accordance with the expedited rules of Judicial Arbitration and Mediation Services (“JAMS”) before a single arbitrator. The award of such arbitration shall be confidential, final, binding and non-appealable, except to the extent provided for in the rules of JAMS. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding.  The arbitrator will have the discretion to impose the costs of the arbitration upon the losing party or divide it between the parties upon any terms which (s)he deems appropriate; provided, however, that each party shall bear its own legal fees and costs.  Except for punitive and consequential damages (which may not be awarded), and subject to this Agreement, the arbitrators shall be authorized to award either party any provisional or equitable remedy permitted by applicable law.

BECAUSE THE USE OF THE SERVICE REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, SUBJECT TO THIS SECTION 8.1, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING.  THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.

The award of the arbitrators may be enforced in any court having jurisdiction thereof.  Each party hereby consents (i) to the exclusive jurisdiction of the state or federal courts located in Nashville, Tennessee for any action (a) to compel arbitration, (b) to enforce any award of the arbitrators, or (c) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim or provisional equitable remedies, and (ii) to service of process in any such action by registered mail or any other means provided by law.  Should this Section 8.1 be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that sole and exclusive jurisdiction and venue for any claims will be in the state or federal courts in Nashville, Tennessee and each party hereby irrevocably consents to the exclusive jurisdiction of such courts.

8.2        Notices between the parties shall be by personal delivery, facsimile transmission, or certified or registered mail, return receipt requested, and shall be deemed given upon receipt at the address of the recipient party or ten (10) days after deposit in the mail.

8.3        Except as otherwise expressly provided in this Agreement, neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of any acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, service provider or hosting facility failures or delays involving hardware, software or power systems not within LiveSchool’s possession or reasonable control, denial of service attacks, incompatibility of User’s equipment or software with the Service, acts or omissions of vendors or suppliers, transportation and telecommunications difficulties.

8.4        In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and effect of the invalid provision.

8.5        This Agreement, any Master Agreement and any addendum or amendment to either of the foregoing, constitute the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. User may not assign or transfer User’s rights and obligations under this Agreement without the prior written consent of an authorized representative of LiveSchool.

8.6        The provisions of this Agreement are not intended to create any relationship between User and LiveSchool other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of this Agreement, and nothing contained herein shall be construed as creating any agency, employment, partnership, or joint-venture relationship between the parties.

YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS, DISCLOSURES AND DISCLAIMERS SET FORTH ABOVE ARE FAIR AND REASONABLE, AND THAT YOUR AGREEMENT TO FOLLOW AND BE BOUND TO THEM IS NOT THE RESULT OF FRAUD, DURESS OR UNDUE INFLUENCE EXERCISED UPON YOU BY ANY PERSON OR ENTITY.