ClassFlow Marketplace Terms and Conditions
V.1 Effective Date: July 29, 2016
The Marketplace is intended only for use by adults who have a ClassFlow Account. You must be 18 years of age or older and have a ClassFlow account to participate as a Buyer or a Seller in the Marketplace.
Sellers who upload Resources to the Marketplace acknowledge that Seller’s electronic submission of a Resource to the Marketplace constitutes Seller’s agreement and intent to be bound by the ClassFlow Legal Terms. Buyers who purchase or freely download Resources from the Marketplace acknowledge that such purchases and downloads constitute Buyer’s agreement and intent to be bound by the ClassFlow Legal Terms.
A. SELLER TERMS AND CONDITIONS.
1. UPLOADING RESOURCES TO THE MARKETPLACE. If you registered for your ClassFlow account as a teacher, you may choose to upload a Resource to the Marketplace for use (as outlined herein) by anyone who has registered for a ClassFlow account as a teacher. By submitting a Resource to the Marketplace you will choose whether to offer the Resource for free or for a fee. Seller acknowledges that once a Resource is uploaded to the Marketplace, the Resource may be found via a search query in ClassFlow and subsequently downloaded to the user’s ClassFlow account. The Resource may also be found via search engines outside of the ClassFlow Service such as Google or Bing, in which case the Resource can be viewed but cannot be downloaded or edited. Authorized Users (as defined in the ClassFlow Terms of Service) uploading to the Marketplace on behalf of an Enterprise User (as defined in the ClassFlow Terms of Service) must do so with the appropriate permissions and authority of the Enterprise User.
1.1 Seller Profile. In order to sell for a fee or offer for free a Resource in the Marketplace, Seller may create a profile within ClassFlow. Sellers’ first and last name are required in Seller’s profile but all other fields are optional. All of the information Seller inputs into Seller’s profile, will be publicly available to not only ClassFlow account holders but also to anyone who comes across the Seller’s Resource in an off-line search of the Marketplace or a search via a search engine such as Bing or Google. Seller understands that Seller should not populate the optional fields if Seller does not want that information made publicly available.
2. CODE OF CONDUCT. As a condition of uploading Resources to the Marketplace, Sellers must comply with the terms of the ClassFlow Acceptable Use Policy. In accordance with the Acceptable Use Policy Sellers will not: (a) upload any Resources that contain advertising, promotional materials, junk mail, spam, chain letters, affiliate links, or any other form of solicitation; (b) upload any Resource that contains personal or identifying information about another person without that person’s explicit consent; (c) upload any Resource that contains viruses, worms, Trojan horses, spyware or other harmful computer code; or (d) knowingly upload a Resource that infringes any third party right. The Acceptable Use Policy contains a set of Content Standards that apply to all Resources uploaded by a Seller. Those Content Standards include, but are not limited to the requirement that any Resource uploaded to the Marketplace must not:
- contain any material which is defamatory of any person;
- contain any material which is obscene, offensive, hateful or inflammatory;
- promote sexually explicit material;
- promote violence;
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- promote illegal activity;
- be likely to harass, upset, embarrass, alarm or annoy any other person;
- be used to impersonate any person or to misrepresent your identity or affiliation with any person; or
- give the impression that they emanate from Promethean if this is not the case.
Sellers must read and comply with the full ClassFlow Acceptable Use Policy and Sellers should read the ClassFlow Acceptable Use Policy prior to posting any Resource to the Marketplace.
2.1 Inappropriate Resources. Promethean prohibits the uploading of Resources that violate the ClassFlow Acceptable Use Policy. However, Buyers and Sellers acknowledge and agree that (i) Promethean is not and cannot be responsible for any content, information or materials submitted by Sellers in the Marketplace; (ii) Users of the Marketplace may be exposed to in appropriate material; and (iii) Users bear all risks associated with the exposure to and or use of any such Resources including without limitation any reliance on the accuracy, completeness, or usefulness of such Resources. Promethean reserves the right (but does not assume any obligation) to monitor your use of the Marketplace and Promethean will use reasonable efforts to eliminate inappropriate Resources from the Marketplace. Without limiting any remedies Promethean may have, Promethean reserves the right to remove, in whole or in part, any Resource at any time in Promethean’s sole discretion; terminate a Seller’s ability to upload further Resources to the Marketplace; or terminate a Seller’s ClassFlow Account. If you believe that any Resource uploaded to the Marketplace contains content that is offensive or inappropriate and therefore breaches the ClassFlow Acceptable Use Policy please assist us by emailing email@example.com and indicating in the email the details of the Resource.
3. SELLER’S LICENSE TO PROMETHEAN AND BUYERS.
3.1 Seller retains ownership of any rights in and to the Resource Seller uploads. However, by making the Resource available in the Marketplace, any teacher that sells or offers for free Resources via the Marketplace (a “Seller Teacher”) hereby grants to Promethean a royalty-free, worldwide, perpetual, irrevocable, sublicensable, non-exclusive right and license to exercise any copyright, trademark rights, publicity rights, and or database rights Seller has in the Resource, in any media now known or later developed, solely as reasonably necessary to make the Resource available in the Marketplace. This is a license only – Seller’s ownership rights in the Resource are not affected.
3.2 Unless otherwise specifically agreed via a separate license agreement between Promethean and a third party publisher that sells or offers for free Resources via the Marketplace (a “Seller Publisher”), such Seller Publisher hereby grants to Promethean a royalty-free, worldwide, perpetual, irrevocable, sublicensable, non-exclusive right to exercise any copyright, trademark rights, publicity rights, and or database rights Seller has in the Resource, in any media now known or later developed, solely as reasonably necessary to make the Resource available in the Marketplace. This is a license only – Seller’s ownership rights in the Resource are not affected.
3.3 By submitting a Resource in the Marketplace, Seller Publisher or Seller Teacher, whichever is applicable, hereby grants to the Buyer a license to the Resource. It is the Seller’s responsibility to give notice to Buyers of the license terms (including but not limited to copyrights and trademark rights) under which Seller is offering the Resource to Buyers in the Marketplace. For example, a teacher selling or providing a Resource for free in the Marketplace may consider applying one of the copyright licenses made available through Creative Commons to the Resource. Find out more about these licenses at the Creative Commons website located at creativecommons.org. Seller is responsible for protecting and enforcing any terms under which a Seller offers a Resource via the Marketplace and Seller agrees that Promethean has no obligation to do so on Seller’s behalf. To the extent that Seller does not give notice to the Buyer of any specific license terms for a Resource, Seller agrees that it grants to the Buyer a worldwide, non-exclusive, non-sublicensable, irrevocable license to use, reproduce, and adapt the Resource (in whole or in part) without any right to share or distribute the Resource to any third party except to Buyer’s students for teaching purposes or to other third parties to aid or facilitate teaching purposes.
3.4 Any removal of the Resource from the Marketplace by the Seller shall simply remove Promethean’s right to make the Resource available for further download by Buyers; it shall not affect Promethean’s right to continue making that Resource available to Buyers who downloaded it prior to Seller’s removal of said Resource. The license granted by the Seller (as outlined in clause 3.3 herein) to Buyers who have already downloaded the Seller’s Resource from the Marketplace prior to the Resource being removed will continue under the applicable terms of the license.
3.5 If a Seller chooses to cancel their ClassFlow account or a Seller’s ClassFlow account is terminated by Promethean, Seller agrees that prior to the termination or cancelling of the ClassFlow account, Seller will remove from the Marketplace any Resources submitted by the Seller. The removal of the Resource from the Marketplace by the Seller shall simply remove Promethean’s right to make the Resource available for further download by Buyers; it shall not affect Promethean’s right to continue making that Resource available to Buyers who downloaded such Resource prior to Seller’s removal of said Resource. The license granted by the Seller to Buyers who have already downloaded the Seller’s Resources from the Marketplace prior to Seller’s account being cancelled or terminated will survive such termination.
3.6 Upon termination or cancellation of Seller’s ClassFlow Account, Promethean shall have no obligation to pay Seller any fee or compensation for the sale of any of Seller’s Resources that remain available for sale within the Marketplace after the effective date of the termination or closure of Seller’s ClassFlow account. Seller is responsible for removing Seller’s Resources from the Marketplace prior to the effective date of the termination or closure of Seller’s ClassFlow account. If Seller fails to remove Seller’s Resources from the Marketplace prior to termination or cancellation of Seller’s ClassFlow account, then upon such termination or cancellation, Promethean may, at Promethean’s sole election, remove Seller’s Resources from the Marketplace, or continue to offer the Resource via the Marketplace.
4. SELLER REPRESENTATIONS AND WARRANTIES. By uploading or posting Resources to the Marketplace, Seller represents and warrants that (a) the Resource was created solely by the Seller or Seller has all rights and or license necessary to use, publish, distribute, reproduce, sell and or otherwise exploit the Resource including the right to grant to Promethean and other ClassFlow users the rights and licenses contemplated herein; (b) the Resource will not infringe or otherwise violate the intellectual property rights (including but not limited to the copyright or trademark rights) or any other rights of any third party; (c) Seller has the consent, release, and or permission of each identifiable person depicted in Seller’s Resource to upload, transmit, publish, sublicense, and or disseminate their name and or likeness through the Marketplace; and (d) any Resource Seller uploads to the Marketplace will be the entire Resource capable of being downloaded in full in its entirety and that no part of such Resource will be delivered separately or require a separate or additional purchase, for example via a third-party website or other channel. To the extent Seller has knowledge that any Resource Seller has uploaded infringes any such right, Seller will immediately remove such Resource from the Marketplace.
5. SELLER INDEMNITY. Seller agrees to indemnify and hold Promethean and Promethean’s subsidiaries, parent, affiliates, officers, agents, representatives, and employees harmless from any and all claims, demands, liabilities, expenses, or tax assessments, including reasonable attorneys’ fees, arising out of any claim made by any third party or any action taken by any governmental or regulatory body, due to, arising out of, or relating to (i) any Resource that Seller submits, sells, posts, transmits, provides, or otherwise makes available through the Marketplace; (ii) Seller’s actual or alleged breach of the ClassFlow Legal Terms; (iii) Seller’s actual or alleged infringement of any third party intellectual property or proprietary rights, or (iv) Seller’s actual or alleged violation of any applicable laws, rules, regulations, or rights of another.
6. PRICING OF RESOUCES, REVENUE SHARE, FEES AND PAYMENTS.
6.1 Pricing of Resources. Sellers are solely responsible for setting the prices for the sale of their Resources on the Marketplace (the “List Price”) provided that such pricing (if such Resource is not offered free of charge) is not below the minimum price required by Promethean. The minimum price required by Promethean is subject to change by Promethean, in Promethean’s sole discretion, but the then-current minimum price requirement will be disclosed to the Seller if the Seller attempts to list the Resource on the Marketplace for any price below the minimum price required. The List Price shall be inclusive of any VAT or similar taxes included in the purchase price displayed to Buyers. List Price shall be in U.S. dollars only.
6.2 Taxes and Nature of Relationship with Seller. Sellers are solely and exclusively responsible for any federal, national, state, provincial, or local taxes, including sales taxes that may apply to any sales the Seller makes via the Marketplace. Seller is likewise solely and exclusively responsible for any income or other taxes due and payable resulting from any payments made to Seller. If you sell any Resource or Resources through the Marketplace, you agree to provide Promethean with any forms, documents, or other certifications as Promethean may request to satisfy any information reporting or tax obligations with respect to your use of the Marketplace. Nothing in the ClassFlow Legal Terms constitutes an employment relationship, agency or partnership between Promethean and any Seller.
6.3 Revenue Share and Transaction Fee. In consideration for Promethean providing a location from which a Seller may offer the Seller’s Resources for sale, Seller agrees that Promethean will receive 35% of the List Price for each Resource uploaded and sold via the Marketplace and Seller will receive 65% of the List Price (“Revenue Share”) less a $0.25 transaction fee per Resource sold (“Transaction Fee”). For purposes of calculation of the amount the Seller is paid, taxes are excluded from the List Price. In other words, if the List Price for the Resource is $2.00, upon sale of the Resource, Promethean will keep 35% of the total $2.00 as its Revenue Share and an additional $0.25 per Resource as a Transaction Fee notwithstanding any sales tax which may be included in the List Price. Therefore, for a Resource with a $2.00 List Price, Promethean will keep $0.70 as the Revenue Share and an additional $0.25 as the Transaction Fee and Seller will be entitled to receive $1.05. The Revenue Share and Transaction Fee will automatically be deducted from the sale price collected from the Buyer through the use of a third party payment processing service that will enable Sellers to accept and Buyers to make online payments. Promethean reserves the right to add, remove or otherwise alter the third party payment processor used by Promethean to enable transactions between Sellers and Buyers via the Marketplace.
6.4 Payments to Seller. Seller accepts and acknowledges that nothing stated or written by Promethean, and nothing in the ClassFlow Legal Terms creates or has created any expectation of any sale, any specific level of sales or remuneration to the Seller for any Resources uploaded by the Seller for sale or distribution through the Marketplace. For the convenience of the Seller, Promethean makes available the services of a third party payment processor. In order to receive payments for the Resources sold via the Marketplace, Seller must either link to an existing account or create an account with the third party payment processor. Payments will be made in U.S. dollars only. Provided Seller is in compliance with the ClassFlow Legal Terms, payments will be distributed automatically into Seller’s account with the third party payment processor no later than thirty (30) days from the date the Resource is sold. Promethean makes no representations regarding the services provided by the third party payment processor and Promethean is not responsible for delays in payment which may be caused by any third party to include but not be limited to any third party payment processor. Additionally, Seller waives any right to require payment by any other mechanism other than as outlined herein and accepts that no other debt arises under the ClassFlow Legal Terms.
6.5 Refund Policy. To the extent that Promethean elects to issue a refund to a Buyer (as outlined in Section B. Clause 4 below) for a Resource that the Buyer downloaded, Promethean will notify the Seller of that Resource. Promethean reserves the right to remove any Resource from the Marketplace if such Resource has resulted in the issuance of a refund. Within 10 days of receipt of a notice from Promethean, Seller is required to issue a refund to Promethean via Promethean’s third party payment processor in the full amount received by the Seller for that Resource. If Seller fails to issue the refund to Promethean, Promethean reserves the right to (i) remove the Seller’s Resource or Resources from the Marketplace; (ii) restrict Seller from uploading further Resources to the Marketplace; or (iii) terminate Seller’s ClassFlow account.
7. Warranty Disclaimers. PROMETHEAN 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 AND USE OF THE MARKETPLACE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION PROVIDED BY SELLER TO THE 3RD PARTY PAYMENT PROCESSOR, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MARKETPLACE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE MARKETPLACE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY RESOURCE, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY RESOURCE SOLD, OR OTHERWISE MADE AVAILABLE VIA THE MARKETPLACE. PROMETHEAN WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN BUYER, SELLER AND 3RD PARTY PAYMENT PROCESSOR. ADDITIONALLY, PROMETHEAN IS NOT RESPONSIBLE FOR ANY DAMAGES OR LOST PROFITS RESULTING FROM TRANSACTIONS CONDUCTED OUTSIDE OF THE MARKETPLACE, INCLUDING TRANSACTIONS THAT MAY ORIGINATE THROUGH THE MARKETPLACE BUT ARE TAKEN OFFLINE OR OUTSIDE OF THE MARKETPLACE.
B. BUYER TERMS AND CONDITIONS.
1. Downloading Resources From the ClassFlow Marketplace. In order to download a Resource from the Marketplace, a Buyer must have a ClassFlow account. A Buyer may purchase a Resource from the Marketplace, by using an existing account or creating an account with the third party payment processor identified by Promethean, or by credit or debit card .All Resources available via the Marketplace are digital resources. As such, upon receipt of payment through the third party payment processor, Promethean shall immediately make such Resource available [deliver such Resource] to a Buyer for the Buyer’s immediate use and access in the “My Resources” folder of the Buyer’s ClassFlow account. Promethean will generally make a Resource that Buyer purchases available to the Buyer indefinitely for so long as the Resource is available via the Marketplace. However, Promethean makes no guarantee of this and the Resource may be removed by the Seller from the Marketplace at any time or it may be removed by Promethean in response to a complaint about the Resource.
2. Buyer’s Rights and Obligations in the Resource. Buyer’s purchase of Resources from the Marketplace is made under a license only; there shall be no outright transfer of title or ownership in any such Resource. The license terms under which the Buyer may use the Resource purchased shall be those terms set forth by the Seller as outlined in Section A Clause 3.3 herein. By purchasing the Resource, Buyer agrees to accept and be bound by the license terms attached to that specific Resource including all copyright notices, trademark rules, information, and licensing or use restrictions identified by the Seller. In any event, you agree not to use any Resource you purchase or obtain for free via the Marketplace on in violation or breach of the license terms governing your use of the Resource.
3. Payment for Resources. Buyer agrees to be responsible and to pay in full for all Resources purchased via the Marketplace via the third party payment processor identified by Promethean. Buyer further agrees that Promethean may charge the Buyer’s account established with the third party payment processor for any Resource purchased by Buyer. Buyer is responsible for providing Promethean with valid and current account details for payments of all fees.
4. Refund Policy. All Resources available via the Marketplace are digital resources which, upon purchase, are made available to a Buyer for the Buyer’s immediate use and access in the “My Resources” folder of the Buyer’s ClassFlow account. Buyer acknowledges and accepts that all sales of Resources via the Marketplace are final and no refunds are available. Notwithstanding the foregoing policy, Promethean may, in its sole discretion, make certain exceptions to this policy on a case-by-case basis, for example if a Resource is unable to be used, downloaded or accessed by a Buyer due to a defect or flaw with the Resource. If such an exception is made, Promethean may issue to the Buyer a refund for such purchase in any manner Promethean deems appropriate, including without limitation in the form of a Marketplace credit.
5. Links to other Sites and Resources. A Resource may contain links to other websites or resources. Promethean has no control over such external sites and resources. Buyer agrees that (i) Promethean is not responsible for the availability or accuracy of such external sites and resources, and (ii) Promethean does not endorse nor is it responsible or liable for any content, advertising, products, services or materials on or available from such external sites and resources. If Buyer accesses those external sites or resources, Buyer does so at Buyer’s own risk and Buyer assumes all responsibilities and consequences which may result.
6. Warranty Disclaimers. BUYER AGREES THAT BY PURCHASING A RESOURCE FROM THE MARKETPLACE, BUYER DOES SO ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT BUYER’S USE OF THE MARKETPLACE PROVIDED BY PROMETHEAN IS DONE SO AT BUYER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PROMETHEAN, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE MARKETPLACE, BUYER’S ACCESS TO AND USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PROMETHEAN MAKES NO WARRANTIES ABOUT THE TRUTHFULNESS, ACCURACY, OR COMPLETENESS OF THE RESOURCES FOUND ON THE MARKETPLACE; OR ABOUT THE AVAILABILITY, QUALITY, CHARACTERISTICS, LEGITIMACY, FUNCTIONALITY, SECURITY, OR SAFETY OF ANY RESOURCE (INCLUDING, WITHOUT LIMITATION, ANY TEACHING CONTENT) LISTED FOR SALE OR FOR FREE ON THE MARKETPLACE. PROMETHEAN ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE CONTENT OF THE RESOURCES AVAILABLE ON THE MARKETPLACE ARE FIT FOR ANY PARTICULAR PURPOSE OR WILL MEET ANY BUYER’S REQUIREMENTS, AND 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 AND USE OF THE MARKETPLACE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION PROVIDED BY YOU TO THE 3RD PARTY PAYMENT PROCESSOR, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MARKETPLACE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE MARKETPLACE BY ANY THIRD PARTY, (V) ANY ERRORS OR OMISSIONS IN ANY RESOURCE, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY RESOURCE SOLD, OR OTHERWISE MADE AVAILABLE VIA THE MARKETPLACE, AND/OR (VI) ANY RESOURCE, OR PART OF ANY RESOURCE, THAT INFRINGES THE INTELLECTUAL PROPERTY RIGHT OR RIGHTS OF ANY THIRD PARTY. PROMETHEAN DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY RESOURCE OFFERED BY A SELLER THROUGH THE MARKETPLACE OR ANY HYPERLINKED WEBSITE, AND PROMETHEAN WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN BUYER, SELLER AND 3RD PARTY PAYMENT PROCESSOR. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, BUYER SHOULD USE THE BUYER’S BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. ADDITIONALLY, PROMETHEAN IS NOT RESPONSIBLE FOR ANY DAMAGES OR LOST PROFITS RESULTING FROM TRANSACTIONS CONDUCTED OUTSIDE OF THE MARKETPLACE, INCLUDING TRANSACTIONS THAT MAY ORIGINATE THROUGH THE MARKETPLACE BUT ARE TAKEN OFFLINE OR OUTSIDE OF THE MARKETPLACE.
C. COPYRIGHT NOTICE AND TAKE DOWN.
1. Notice of Infringement. If you believe that any Resource found in the Marketplace infringes your copyright, you should notify Promethean of your claim in accordance with the following procedures. Promethean will process notices of alleged infringement in accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable copyright laws. The DMCA requires that notification of claimed infringement be in writing and provided to Promethean by email to firstname.lastname@example.org.
The information requested by the Notice of Infringement is designed to ensure that parties reporting items are either rights owners or authorised by the rights owners, and to enable us to correctly identify the Resource to be removed. To be effective, the notice of infringement must contain the following information:
- A physical or electronic signature of the owner of an exclusive right, or a person authorized to act on behalf of the owner of an exclusive right, that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Process Upon Receipt of a Notice of Infringement. Upon receipt of a proper Notice of Infringement, we reserve the right to:
- remove or disable access to the infringing material;
- notify the Seller who is accused of infringement that we have removed or disabled access to the applicable material;
- terminate such Seller’s access to the Marketplace; and
- terminate the Seller’s ClassFlow account.
If the Seller believes that the Resource that was removed or to which access was disabled is not infringing, or the Seller believes that Seller has the right to post and use such Resource, the Seller has the right to send us a counter-notice containing the following information to email@example.com:
- an electronic signature of the Seller, or a person authorized to act on behalf of the Seller;
- identification of the Resource that has been removed or to which access has been disabled and the location at which the Resource appeared before it was removed or disabled;
- a statement that the Seller has a good faith belief that the Resource was removed or disabled as a result of mistake or misidentification of the Resource; and
- Seller’s name, address, phone number, and if available, email address.
If a counter-notice is received by us, we may send a copy of the counter-notice to the original complaining party informing them that we may replace the removed Resource or cease disabling it in 14 business days after receipt of the counter-notice at Promethean’s sole discretion.
D. LIMITATION OF LIABILITY.
BUYER AND SELLER AGREE THAT PROMETHEAN, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND/OR AGENTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, REPUTATION, USE, OR DATA OR OTHER INTANGIBLE LOSSES, RESULTING FROM THE ACCESS TO, USE, OR THE INABILITY TO ACCESS OR USE THE MARKETPLACE OR ANY OTHER MATTER RELATING TO THE MARKETPLACE. SOME U.S. STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY. PROMETHEAN’S LIABILITY TO A SELLER SHALL IN NO EVENT BE, IN THE AGGREGATE, GREATER THAN THE LESSER OF (A) THE TOTAL AMOUNTS PAID BY PROMETHEAN TO SELLER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE CLAIM OR ACTION ALLEGEDLY GIVING RISE TO SUCH LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100.00). PROMETHEAN’S LIABILITY TO A BUYER SHALL IN NO EVENT BE, IN THE AGGREGATE, GREATER THAN THE LESSER OF (A) THE TOTAL AMOUNTS PAID BY BUYER TO PROMETHEAN DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE CLAIM OR ACTION ALLEGEDLY GIVING RISE TO SUCH LIABILITY, OR (B) ON HUNDRED DOLLARS ($100.00).
SELLER AND BUYER HEREBY ACKNOWLEDGE AND UNDERSTAND THAT BY ACCESSING AND USING THE SERVICE AND AGREEING TO THE TERMS OF THIS AGREEMENT, SELLER AND BUYER MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. IF BUYER OR SELLER IS A CALIFORNIA RESIDENT, BUYER OR SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVE, THE SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” FURTHERMORE, IF BUYER OR SELLER ARE A RESIDENT OF ANOTHER U.S. STATE OR OTHER JURISDICTION, YOU AGREE TO WAIVE IN ADVANCE ANY SIMILAR LAWS OF SUCH OTHER STATE OR JURISDICTION.
E. ENTIRE AGREEMENT.
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