As of April 28, 2020
Welcome to Shmoop! We know...reading the fine print isn't as fun as reading Shmoop's sparkling analysis about "Lucy in the Sky with Diamonds," but please read through these carefully.
IF YOU ACCESS AND USE THE SITE OR THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SITE OR ANY OF THE SERVICES.
II. Updates and Revisions
From time to time, Shmoop may need to update or revise this Agreement. This may include revisions to reflect changes in our Services, changes in the law, or changes in our pricing and other terms. We will call these “Modifications.” We will notify Users of the Modifications by posting the updated Agreement on our Site and to the email address you provided when registering for the Services. You agree that your continued use of the Site and Services after such Modifications are posted constitute your acceptance of such changes. Your sole recourse if you do not agree to the Modifications is to stop using the Site and the Services.
In addition, unless explicitly stated otherwise, all new Shmoop and Shmoop-related products, services, tools, enhancements, and modifications to Shmoop are subject to this Agreement, unless otherwise stated on the Site.
Shmoop reserves the right, at any time, and for any reason, from time to time, to modify, suspend, or discontinue, temporarily or permanently, the Shmoop Services (or any part thereof) with or without notice. User acknowledges and agrees that Shmoop is not liable to User or any third party for such suspension, modification, or discontinuance. Nothing in this Agreement shall be construed to obligate Shmoop to maintain and support the Site or Services, or any part or portion thereof, for any specific term.
III. Shmoop's Services
Shmoop is an online provider of information, resources, guides, tools, and other related content about academic, social, and cultural topics. Shmoop Services include, but are not limited to, the Heartbeat™ tool, Learning Guides, Teaching Guides, Essay Lab, Test Prep, Courses, and Flashcards. The Site and Services may include written, audio, video, photographic, artistic, and other content and material (collectively, “Shmoop Content”). We may add, remove, revise, suspend, terminate, or modify any of these Services or Shmoop Content at any time in our sole discretion. If we add any Services, they will be subject to this Agreement, unless we state otherwise on our Site.
IV. User Access and Equipment Requirements
To use the Services, a User must have an electronic device (such as a computer, tablet, or mobile device), an internet connection, and sufficient bandwidth to access and/or download Shmoop Content. User is solely responsible for obtaining and operating and for all costs associated with the electronic equipment and internet connectivity required to access and use the Services. Shmoop is not responsible for any problems, costs, or fees associated with any User’s equipment or internet connectivity or any lack of bandwidth, including any faulty, erratic, or interruption in transmission of any Shmoop Content or Services.
V. Registration and Access to Shmoop Services
You must have the legal capacity to enter into a contract to register and use the Site and Services. If you are a minor in the jurisdiction where you live, you must have the consent of your parent or legal guardian to use the Site and Services. If you are under 13 in the United States and under 16 in the European Union, we will need to obtain parental consent before we can let you register and use the Services.
The Shmoop Services are provided from the United States and Shmoop makes no guarantees that its Services or the Shmoop Content is appropriate for use from locations outside the United States. For those Users using Shmoop outside of the United States, the User is responsible for complying with any local laws in User’s jurisdiction that might impact User’s right to use the Services. Use of Shmoop in geographic areas in which such use is illegal is prohibited (and we reserve the right to exclude use of the Services from such jurisdictions). In addition, a User may not use the Site if he or she is a resident of a country embargoed by the United States, or is a foreign person or entity blocked or denied by the United States government.
You must complete a registration form to register for and use the Services. In connection with the registration or creation of a user account and profile as a Shmoop user, User must provide certain personal information to Shmoop, such as your name and email address. User affirms that the personal information provided about User is correct, accurate, and true as of the time of registration or creation of the user profile. User will update personal information on the Shmoop website on a regular basis.
You will also need to create a username and password to access your account. We call these your “Account Credentials.” User is responsible for keeping the Account Credentials confidential and not sharing them with any other person, except that a parent may share Account Credentials with a child that has created an account through the parent. Shmoop will not be held responsible for misuse or unauthorized use of User’s Account Credentials.
User may log in to a user account via a third party network, such as a sign-in through your Google account. If User does so, User hereby authorizes Shmoop to pre-populate the relevant information fields of User’s account and/or to use such third party network credentials to log User into the Site and Services.
User can access or change User’s personal profile and contact information or delete User’s account through User’s personal settings page. If User chooses to delete or deactivate User’s account, User can no longer retrieve his or her content or reactivate his or her account. Also, User’s username may become available for another person to use. However, unless prohibited by applicable law, information or data provided by User prior to deactivating User’s account will remain accessible.
VI. Privacy and Security
We also follow special procedures when collecting information from children. For children in the United States that are under the age of 13, we follow the requirements of the Children’s Online Privacy Protection Act (“COPPA”). If you are a child under 13, you may not register an account for the Site without consent and approval from your legal parent or guardian. Consistent with COPPA, Shmoop may ask for a User’s age and if we determine a User is under the age of 13, we will ask for a parent or guardian’s email address in order to obtain parental consent before Shmoop collects any personal information from the child.
If you are a resident of the European Union (“EU”), consistent with the EU’s General Data Protection Regulation (“GDPR”), you may not register an account with the Site if you are under 16 without consent and approval from your legal parent or guardian. We will follow a similar procedure for verifying parental consent for EU Users under 16 to the extent required and permitted under GDPR.
If you, as the User, are a parent or legal guardian of a child under the age of 13 in the United States or 16 in the EU, who you allow to access or use the Site and Services, you hereby give your express consent for that child to use the Site and Services, which includes all the features and functionality pertaining to your registration and subscriptions, including social media/community features. You represent and warrant that you will not allow a child under the age of 13 (or 16 if you are a resident of the EU) to use the Site or Services if you do not agree to provide such express consent.
You acknowledge that Shmoop may choose, but is not obligated, to make any inquiries, either directly or through third parties, that Shmoop deems necessary to validate your registration information. Shmoop reserves all rights to take legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT SHMOOP CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY YOU AND SHMOOP IS NOT OBLIGATED TO VERIFY YOUR IDENTIFY OR TO VERIFY THAT A PARENT IDENTIFIED BY YOU DURING REGISTRATION IS YOUR ACTUAL PARENT OR GUARDIAN, EXCEPT AS REQUIRED BY APPLICABLE LAW.
VII. Subscriptions, Payments, and Cancellations
Users may subscribe to access any of the Services offered through the Site. Shmoop offers subscriptions for the Services on a paying basis (“Paid Subscription”):
- Paid Subscriptions: We charge a subscription fee for many of the Services on the Site. You can pay for these Subscriptions on a monthly or annual basis (“Subscription Term”). The Subscription Term starts on the date you register for the Service and for monthly subscriptions, ends at the end of each month or for annual subscriptions, ends at the end of the month one year after the initial registration; we do not pro-rate for partial monthly or annual periods. For example, if you started a monthly plan on September 15, 2020, the initial Subscription Term would end September 30, 2020; if you started an annual plan on September 15, 2020, the initial Subscription Term would end on September 30, 2021. If you register for a Paid Subscription, we will ask you to provide a valid credit card for payment of the subscription fees. By providing your credit card, you authorize us to charge your credit card the subscription fees on a monthly or annual basis, depending on the plan you selected.
- School & District Plans: Schools and school districts can contact Shmoop to arrange for a plan to be provided to students and teachers of that school or school district (“School & District Plans”). Such plans are negotiated on an individual basis and subject to separate agreements, except that any authorized user under a School & District Plan must agree to this Agreement in using the Site and Services provided under that plan.
- Authorized Users: Any Paid Subscription may only be accessed by the User who has registered for that subscription and may not be transferred to any other person or User without the written permission of Shmoop, except a parent or legal guardian may allow the child that they have registered to access and use their Shmoop Account and Account Credentials to access the Services. In the case of School & District Plans, the school or school district is responsible for designating the authorized Users; no person may use the Services under a School & District Plan without first being designated by the school or school district. The number of authorized Users under any single Subscription may not exceed the number of permitted seats paid under that Subscription (“Maximum Seats”). If an authorized User breaches this Agreement, Shmoop may terminate that authorized User’s access to the Services. Any use of the Services by a User not authorized under this Agreement or in excess of Maximum Seats shall constitute a breach of this Agreement, entitling Shmoop to terminate access by that User.
- Pricing and Payments
Except in the case of School & District Plans, the fees (“Subscription Fee”) for Paid Subscriptions will be set forth on the page where you register for the Paid Subscription. Shmoop may change the Subscriptions Fee for Paid Subscriptions from time to time, and will communicate any such price changes to User. Subscription Fee changes for Paid Subscriptions will take effect at the start of the next Subscription Term following the date of the price change. By continuing to use the Shmoop Service after the Subscription Fee change takes effect, User accepts the new Subscription Fee (e.g., in the case of a monthly plan, the increase will take effect the following month; in the case of an annual plan, the increase will take effect on the next annual period). If a User does not agree to the Subscription Fee change, it should cancel the subscriptions on the User’s account before the end of the current Subscription Term.
Our Paid Subscriptions renew automatically and so a User’s payment to Shmoop for Subscription Fees will automatically renew at the end of each applicable Subscription Term, unless the Paid Subscription is cancelled by User through User’s subscription page before the end of the current Subscription Term. The cancellation will take effect the day after the last day of the current Subscription Term However, if User cancels User’s payment and/or terminates before the end of the Subscription Term, Shmoop will not refund any Subscription Fees already paid to Shmoop. Subscription Fees are non-refundable.
User agrees to provide Shmoop with valid, up-to-date, and complete debit/credit card, contact, and billing details to make any payments for Paid Subscriptions. User further authorizes Shmoop to bill such debit/credit card on activation of the Paid Subscription and on the renewal of each Subscription Term. If, for any reason, User’s credit/debit card company refuses to pay the amount billed for the Services, User agrees that Shmoop may, at its option, suspend or terminate User’s subscription to the Services and require User to pay the overdue amount by other means acceptable to Shmoop. Shmoop may charge a fee for reinstatement of suspended or terminated accounts. User agrees that until its subscription to the Services is properly terminated, it will continue to accrue charges for which it remains responsible, even if it does not use the Services. In the event legal action is necessary to collect on balances due, User agrees to reimburse Shmoop for all expenses incurred to recover sums due, including attorney fees and other legal expenses. Unless otherwise expressly stated, all fees are stated in United States dollars.
VIII. Access and Use of Shmoop Services
- User’s Access and Use of Shmoop Services
Provided a User is in compliance with this Agreement, including payment of all Subscription Fees, a User may access the Site, Services and any Shmoop Content provided on the Site, and the Services to which the User has subscribed for the User’s personal, non-commercial use only. User’s access to Services and Shmoop Content shall be for the applicable Subscription Term for the Paid Subscription purchased by User. The Services and Shmoop Content remain, at all times, the sole property of Shmoop or its third party licensors. All rights in the Services and Shmoop Content not expressly granted to User by Shmoop under this Agreement are retained by Shmoop.
- Restrictions on Use
Except as permitted hereunder, or as permitted as a fair use under copyright law, User shall not copy, create derivative works, redistribute, retransmit, publish, or commercially exploit any of the Services or any of the Shmoop Content, resources, or tools on the Site or Services, without express permission in writing of Shmoop and the copyright owner. Shmoop strictly prohibits all commercial and/or unauthorized use of Services. User acknowledges and agrees that User may not use or resell Services for any commercial purpose, including, but not limited to, sending unsolicited commercial messages.
User acknowledges and agrees that no ownership rights are conferred or acquired by User upon download of any Shmoop Content. User may not: (i) remove or alter any trademark, legends, symbols, labels, logos, copyright, or other proprietary notices on the Services or Shmoop Content; or (ii) reverse engineer, decompile, reverse assemble, or otherwise attempt to discover any source code or software used for the Services, except as otherwise permitted by applicable law.
User may not copy, frame, or mirror any part of the Site nor access the Services for purposes of monitoring its availability, performance, or functionality. User also may not bypass the measures Shmoop may use to prevent or restrict access to the Site or the Shmoop Content, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein. User may not retrieve and store or archive in electronic form, or any other form, any material part of the databases underlying the Services.
User may not use Services in any manner that could overburden, disable, damage, or otherwise impair the Services (e.g., User may not access Services in an automated manner by use of “spiders,” “robots,” or otherwise), nor may User use Services in any manner that could interfere with any other party’s use and enjoyment of the Services. User may not attempt to disrupt, degrade, impair, or violate the integrity or security of the Site or the computers, services, accounts, or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security, such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Shmoop internet protocol space. User may not execute any form of network monitoring or run a network analyzer or packet sniffer or other technology to intercept, decode, mine, or display any packets used to communicate between the Site’s servers or any data not intended for User.
- Use and Storage of User Data and Content
User agrees that Shmoop may establish general practices and limits concerning use of Shmoop Services, including, but not limited to, length of time User content is retained, volume of content or data that is stored, and the number of times and length of time a User may use the Services (collectively, “Additional Policies”). User agrees to abide by all such Additional Policies and that Shmoop may modify or alter these Additional Policies from time to time. In addition, User agrees that Shmoop has no responsibility or liability for the deletion or failure to store any messages, communications, performance data, and user-generated content maintained or transmitted by the Services. User acknowledges and accepts that Shmoop retains the right to deactivate or terminate User profiles or accounts at its discretion for reasons including, but not limited to, inactivity or inappropriate activity.
Shmoop reserves the right to provide its content to websites and services that will track whether User has plagiarized any Shmoop Content. Shmoop takes plagiarism extremely seriously and has a right to terminate use and to take legal action against any User who plagiarizes from the Site or Services. Plagiarism is a serious offense and directly opposes the purpose of Shmoop, which is to assist in educating Users, and to promote a deep, rigorous, and enjoyable learning experience on topics covered by Shmoop. Shmoop Content was not created to be a shortcut or opportunity to avoid class assignments, but rather, as a supportive companion in the learning process.
- Citing Shmoop
User must cite Shmoop if he or she uses the Site as a source for a paper, class project, publication, or any other use. The proper citation format for citing Shmoop is, by default, the citation convention appropriate for all websites. More detailed information on citing Shmoop can be found here.
IX. User-Generated Content (UGC)
Shmoop allows Users to post messages, comments, flashcards, questions, and discussions, and otherwise make available information generated by the User (collectively, “user-generated content” or “UGC”). Users may only submit UGC that has been created by User himself or herself, or that User has permission to submit and does not violate copyright, trademark, or any other rights of third parties.
Note: any UGC that you provide and any responses to test prep questions, essays, or response to Heartbeat questions may be viewed by other users of the Service, including teachers and schools if you are a User under a School & District Plan. We cannot guarantee the confidentiality of any UGC or other responses or materials that you may provide in connection with the Services.
Shmoop is not responsible for, nor does it claim ownership of, any UGC that any User posts to the Site through forums, message boards, blogs, or other features, or for any events resulting from UGC to the Site. However, by submitting UGC to Services, User grants, and represents and warrants that User has all rights necessary to grant, to Shmoop, its subsidiaries, affiliates, successors, and assigns an irrevocable, perpetual, worldwide, royalty-free, fully-paid, non-exclusive, sub-licensable (through multiple tiers of sublicensees), and transferable license to use, copy, display, distribute, modify, reproduce, adapt, publish, translate, publicly perform, publicly display and create derivative works of the UGC (in whole or in part), and to incorporate the UGC into other works in any format or medium now or later known.
User may NOT upload, post, submit, email, transmit, or otherwise make available UGC to the Services in a manner that:
(i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another‘s privacy, hateful, or racially, ethnically, or otherwise objectionable;
(ii) contains falsehoods or misrepresentations that could damage Shmoop, its affiliates, or any third party;
(iii) harms minors in any way;
(iv) impersonates any person or identity, including, but not limited to, a Shmoop official, discussion leader, moderator, guide, or host; or falsely state or otherwise misrepresent User’s affiliation with a person or entity, including, but not limited to, the use of identities or headers which misrepresent the original source;
(v) contains advertisements, solicitations of business, or spam, junk mail, chain letters, pyramid schemes, or other forms of solicitation;
(vi) contains any content which infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
(vii) contains any medical or health information that may be protected under HIPAA (“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented) or any content that User has no right to make available under any other law or contractual or fiduciary relationship (such as proprietary and confidential information made available or known to User under a nondisclosure agreement or employment relationship);
(viii) spreads or transmits, or could spread or transmit, any worms, viruses, or other harmful, disruptive, or destructive files, code, or programs designed to interrupt, destroy, or limit the functionality or usability of any computer software or hardware or telecommunications equipment;
(ix) collects or stores personal information about others or otherwise invades their privacy;
(x) harasses, "stalks", or becomes a nuisance to others;
(xi) intentionally or unintentionally violates any applicable local, state, national, or international law; and/or
User acknowledges that Shmoop is not responsible for pre-screening UGC, and from time to time, inappropriate content may appear on the Site before Shmoop is able to remove it. User acknowledges that Shmoop has a right (but not an obligation) to pre-screen, refuse, or remove any posts on any subject at any time, for any reason, at Shmoop’s sole discretion and without warning.
User agrees that User must evaluate, and bear all risks associated with, the use of any UGC, including reliance on the accuracy, completeness, or usefulness of such UGC. In this regard, User acknowledges that User may not rely on any UGC created by Shmoop or submitted to Shmoop, including, but not limited to, information in Shmoop Opinions, Shmoop Profiles, Shmoop Writing Lab, and all other tools, features, or elements of Shmoop and the Services. User agrees that following any links or references posted as UGC on the Site website is done at User’s own risk and that Shmoop is not responsible for other sites which are linked from the Shmoop website.
X. User Feedback and Contributions
Shmoop appreciates User feedback on any ideas regarding Shmoop and Shmoop Services. User agrees that any feedback or suggestions, ideas, documents, and/or proposals (collectively, “Feedback”) that User submits to Shmoop do not contain confidential information. Furthermore, User acknowledges and agrees that: (i) Shmoop is under no obligation of confidentiality, express or implied, with respect to Feedback; (ii) Shmoop shall be entitled to use or disclose, at Shmoop’s sole discretion, such Feedback for any purpose, using any method or media worldwide; (iii) Shmoop may have something similar to the Feedback already in development or under consideration; (iv) Feedback immediately becomes the property of Shmoop without any obligation of Shmoop to User; and (v) User is not entitled to any compensation or reimbursement of any kind from Shmoop under any circumstances for the Feedback.
XI. Term and Termination
This Agreement effective from the date on which User first accesses the Site or submits any user data to Shmoop, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Shmoop may immediately terminate this Agreement, and/or your access to and use of the Site or Services, or any portion thereof, at any time and for any reason, with or without cause, and without prior notice, except that it will not terminate a User’s access to a Paid Subscription unless User has breached this Agreement. Upon termination of this Agreement, or expiration of a Subscription Term, User’s right to use the Site shall immediately cease. Upon termination or expiration of this Agreement for any reason, Sections I through IV, VI, VII. B., VIII B. and C., and IX through XXV shall survive any termination of this Agreement or expiration of any Subscription Term. User agrees that deactivation or termination of User’s account includes any or all of the following: (a) removal of access to all or part of the offerings within Shmoop or the Services; (b) deletion of User’s password and all related information, files, and content associated with or inside of User’s account (or any part thereof); and (c) barring of further use of all or part of the Services
XII. Advertisers or Third Party Vendors
Shmoop Services or web pages may include advertisements. User’s correspondence or business dealings with, or participation in the promotions of, advertisers or third party vendors found on or through Shmoop Services, including payment and delivery of related goods or products, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between User and such advertiser or third party vendor. User’s questions, complaints, or claims must be directed to the advertiser or third party vendor. User agrees that Shmoop shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as a result of the presence of advertisers, third party vendors, or product reviews in Shmoop Services.
XIII. Links and Co-Branding
XIV. Warranty Disclaimer
The Services are designed to be informational and educational, but Users understand that the Services and Shmoop Content are provided “as-is,” without warranties or refunds of any kind, at User’s own risk. While we hope the Services and Shmoop Content are useful, we cannot warrant or guarantee any particular results or outcome from use of the Services and Shmoop Content, such as improvement in test scores or performance in school as that can depend on many factors we cannot control.
For these reasons, Shmoop expressly disclaims all warranties, express and implied, including, but not limited to:
o Warranties that Shmoop products, software, or Services, or level of quality of Shmoop’s products, software, or Services, will satisfy User’s requirements or meet User’s expectations;
o Warranties that the Services, such as the Heartbeat™ Service will improve mental health or cognitive abilities of Users;
o Warranties that a User will result in improved test scores, school performance or admission to any college or university;
o Warranties on the accuracy, reliability, legality, or completeness of the information within Shmoop or Shmoop Services;
o Warranties of title or warranties of merchantability, fitness for a particular purpose, or non-infringement;
o Warranties that any errors in the Service will be corrected;
o Warranties on the timeliness of any download;
o Warranties that the Services and Shmoop Content will be continuous, uninterrupted, secure, timely, useful, adequate, suitable, or error-free; and
User agrees and acknowledges that User should not use Shmoop or Shmoop Services for emergency purposes or to seek or provide diagnosis or treatment of medical, psychological, or other problems or difficulties, or as a substitute for professional psychological, medical, legal, tax, investment, accounting, or other professional advice. For example, while the Heartbeat™ Service is designed to assess a student’s emotional, academic, and cognitive skills, it is not a substitute for professional counseling, psychological, medical or other professional advice, and we are not responsible for any User or third party’s use of the Heartbeat™ assessments.
XV. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Shmoop, or Shmoop’s suppliers and licensors, be liable for any indirect, special, incidental, consequential, or punitive damages arising out of the use of, or inability to use or access, the Site, Services, or Shmoop Content, including, without limitation, loss of data, loss or profit, computer failure or malfunction, or any and all other personal or commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort, breach of warranty, or otherwise) upon which the claim is based. Neither Shmoop nor Shmoop’s suppliers or licensors are responsible for any liability arising out of the Shmoop Services and/or any material linked through the Services. Under no circumstances will Shmoop’s, or Shmoop’s suppliers’ or licensors’, direct liability arising out of use of the Services or Shmoop Content exceed the greater of (i) the amount User paid Shmoop for such use, or (ii) $100.00. Some jurisdictions do not permit some of the above limitations of liability, and, therefore, this may not apply to you.
XVI. Intellectual Property Rights
Shmoop is the sole owner of Shmoop Content and the Services and all copyright and intellectual property rights in the same, with the exception of: (a) links, documents, or UGC cited as belonging to another source; (b) links, documents, or images that are in the public domain; and (c) any and all other content that is within the public domain.
Shmoop, Shmoop.com, Shmooptube.com, Shmoop Profiles, Shmoop Essay Lab, Shmoop Opinions, and all other Shmoop names, labels, trademarks, and logos are trademarks of Shmoop University, Inc. (collectively, “Shmoop’s Marks”). Without Shmoop’s prior written permission, User agrees not to display, or use in any manner, Shmoop’s Marks.
Reproduction, copying, distribution, promotion, or marketing with Shmoop’s Marks, Shmoop Content, or Shmoop Services is strictly forbidden without express prior written permission from Shmoop University, Inc.
The trademarks not owned on behalf of Shmoop and that are displayed within Shmoop Services are the registered or unregistered marks of their respective owners. No rights are granted by Shmoop to use such marks, whether by implication, estoppel, or otherwise.
User agrees to indemnify and hold Shmoop, its subsidiaries and affiliates, and their respective officers, directors, employees, and agents harmless from and against any and all liability, losses, claims, demands, damages, or costs of any kind, including reasonable attorneys’ fees and litigation costs, arising from: (i) User’s UGC or other content that User posts, transmits, submits, writes, emails, uploads, shares, or otherwise makes available through Shmoop Services; (ii) User’s use of, or reliance on, Shmoop Services; (iii) User’s electronic or other connection to the Shmoop Services; (iv) User’s violation of this Agreement; or (v) User’s violation of any rights of any other party.
XVIII. Notice for California Users
Under California Civil Code Section 1789.3, California Service Users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
XIX. Dispute Resolution
The parties shall make a good faith attempt to settle any dispute, claim, question, or disagreement prior to either party initiating a lawsuit or arbitration. Except for disputes relating to Shmoop’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), or if User opts out of this agreement to arbitrate as set forth in subsection D, all claims arising out of or relating to this Agreement and User’s use of the Site shall be finally settled by binding arbitration administered by JAMS in accordance with either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration, excluding any rules or procedures governing or permitting class actions. The arbitration shall take place in Santa Clara County, California unless otherwise agreed to by the parties.
The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Shmoop will pay the additional cost. User agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Shmoop is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
- Class-Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Exception- Litigation of Small-Claims-Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
- 30-Day Right to Opt Out
User has the right to opt out and not be bound by the arbitration and class-action waiver provisions set forth in this section by sending written notice of User’s decision to opt out to the following address: Shmoop University, Inc., PO Box 15550, Scottsdale, AZ 85267. The notice must be sent within 30 days of registering to use the Site; otherwise, you shall be bound to arbitrate disputes in accordance with this Agreement. If you opt out of these arbitration provisions, Shmoop also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Shmoop may terminate User’s use of the Site.
- Time Limitation on Claims
User agrees that any claim User may have arising out of or related to User’s relationship with Shmoop and this Agreement must be filed within one year after such claim arose; otherwise, User’s claim is permanently barred.
XX. Governing Law
TThis Agreement shall be subject and interpreted in accordance with the law of the State of California, without regard to its conflict of law provisions. IT WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Except for matters to be arbitrated under Section XIX, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in the Northern District of California. User consents to the exclusive jurisdiction of the federal or state courts located in the Northern District of California.
If any provision in this Agreement is held unenforceable or illegal by an adjudicatory body of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without altering its intent, or severed from this Agreement should no modification be possible, and the other provisions of this Agreement shall remain in full force and effect.
The headings in this Agreement are applied for reference and convenience only, and shall have no meaning or substantive impact on the interpretation of this Agreement.
XXIII. Entire Agreement
This Agreement supersedes all prior discussions, writings, and agreements and constitutes the entire agreement between User and Shmoop. This Agreement may not be changed, waived, or modified except by Shmoop as provided herein or otherwise by written instrument signed by Shmoop. Employees of Shmoop are not authorized to modify this Agreement, either orally or in writing. You may not rely, and should not act in reliance on, any statement or communication from an employee of Shmoop or anyone else purporting to act on Shmoop’s behalf.
<h4 class="subtitle">XXIV. Miscellaneous</h4>
User is responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sub-licensable by User except with Shmoop’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense, whether by operation of law or otherwise, shall be null and void. Shmoop may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Notices under this Agreement shall be sent to Shmoop to the address set forth in Section XXV; notices to Users may be sent to the email address in the User’s account with Shmoop.
XXV. Contact Information
If you have questions about this Agreement or our Services, please contact us at:
Shmoop University, Inc.
PO Box 15550
Scottsdale, AZ 85267