SDES Terms of Use

Specially Designed Education Services d/b/a Functional Academics (“SDES,” “us,” “our,” or “we”) created these Terms of Use (“Terms”) for you to understand the policies that apply when you use any application, website, or internet access channel, along with its respective content and services, owned or operated by SDES (individually and collectively, the “Services”). By using the Services, you agree to the following:

1. License and Restrictions. We grant you a license to use the Services on a non-exclusive and revocable basis for your personal, private, non-transferable, non-commercial, limited to use only, or subject to a Educational Provider Agreement as described below. You may not use the Services in any way that interferes with our ownership rights in the Services, and we may terminate your access to the Services if you are in breach of these Terms. The following activities may also result in termination of your access to the Services:

1. (a)  Commercially exploiting the Services, meaning you cannot use, sell, lease, or participate in any other activity that serves to generate income from the Services;

2. (b)  Making a copy of the Services or any portion of the Services, except as allowed under these Terms;

3. (c)  Using any data mining tools or automation tools such as spiders, scrapers, crawlers, scripts, bots, or any other automated or manual method or process to access, retrieve, index, or reproduce the Services or its contents;

4. (d)  Reverse engineering, decompiling, disassembling, translating, preparing derivative works based on or otherwise modifying the Services, in whole or in part;

5. (e)  Removing, obscuring or modifying any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Services, falsifying or deleting any author attributions, legal notices or other labels of the origin or source of the material;

6. (f)  Misrepresenting the source of ownership of the Services; and

(g) Conducting any other activity that might be considered illegal or tortious. This includes, without limitation, “hacking” the Services, infringing the intellectual property or other rights of third parties, modifying, altering, translating, reverse engineering, decompiling or disassembling the Services or related documentation or creating derivative works based on the Services.

3. Access to the Service Through Educational Provider Accounts. SDES partners with various schools, school districts, and other educational providers (“Educational Provider”) to provide students and others in or associated with such Educational Providers with access to the Services (“Educational Provider Agreement”). If your school or school district has entered into an Educational Provider Agreement, you may be eligible to receive the benefits of these Services, subject to the terms of such agreement. For example, there may be restrictions regarding the Service, similar to how a library tracks books it has lent through library card accounts and limits circulation pursuant to its policies. SDES may prohibit circulation of the Services to users who do not have accounts through the Service.

4. Rights and License for Educational Provider Data. Any data provided by an Educational Provider and its employees, as defined in section above, (“Educational Provider Data”) will remain the exclusive property of Educational Provider, and Educational Provider grants SDES a worldwide, non-exclusive, royalty-free license to use the data for the sole purpose of performing the Services under these Terms. The Educational Provider Agreement and these Terms do not give SDES any rights, implied or otherwise to the Educational Provider Data (including the sale or trade of Educational Provider Data), except as expressly stated in the Educational Provider Agreement and these Terms. Educational Providers are solely responsible for the use and backing up of the Educational Provider Data.

5. Ownership. All of the content displayed through the Services is owned by SDES, its licensors, vendors, agents and/or its third party providers. All elements of the Services may be protected by trade dress, copyright, moral rights, trademark, and other laws relating to intellectual property rights. The Services contents, elements, and related protections collectively are the “Content.” The Services, its Content, and all related rights will remain the exclusive property of SDES or its licensors.

6. Feedback and On-Site Communications. Any unsolicited ideas, suggestions, materials, or other information you share with us about the Services or other aspects of our business are considered unsolicited feedback (“Feedback”). If you provide us with Feedback, SDES will own all rights in and to such Feedback and any derivative products or services developed from the Feedback. You affirm that your Feedback will not violate any right of any third party and will not be or will not contain libelous or otherwise unlawful, abusive, or obscene material. You are and will remain solely responsible for the content of any Feedback. Your interactions with other Services users are solely between you and such users. You agree that SDES will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved.

7. Account Registration and Security. You may need to create an account to access the Services. Your account is personal to you, and you may not rent, lease, sell, trade, gift, bequeath, or otherwise transfer your account to anyone else. You will: (a) provide true, accurate, current, and complete information about yourself and your business as prompted by the Services’ registration or subscription page (such information being the

“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete or SDES has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, then SDES has the right to suspend or terminate your account and refuse any current or future use of the Services. SDES does not authorize use of automated methods to sign up for an account. You may delete your account at any time, for any reason, by emailing us at admin@sdesworks.com with a request to delete your account. SDES may suspend or terminate your account as described in this Agreement.

(a) Account responsibilities. You are responsible for the security and confidentiality of your password, account, and activities that occur under your account. You will not share your account information or your username and password with any third party or permit any third party to log on to the Services using your account information. You will notify us immediately of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services. The Services may also include a tool that allows you to sign in or register using information from your account with a third-party service, such as single sign on technology. These third-party services are unrelated to the Services, and your login using such third-party registration information and use of such third-party services is subject to the terms and policies of those services. SDES will not be liable for any loss or damage arising from a failure to comply with these account responsibility requirements.

(b) Payments. You represent and warrant that if you are making a purchase through the Services: (i) any credit card information you supply is true, correct, and complete; (ii) your credit card company will honor any charges you incur; and (iii) you will pay the charges incurred by you at the posted prices, including any shipping fees and applicable taxes. We do not accept purchases from wholesalers and we do not accept tax exemption certificates for online sales.

(c) Verification. We reserve the right to contact you by email to verify the accuracy of your account information (including your correct name and address) as needed to provide you with information or transactions you request. Please note that anyone able to provide your personally identifiable information will be able to access your account, so you should take reasonable steps to protect this information, such as checking the validity of the sender of such email to ensure it is not a phishing attempt by a malicious party.

(d) Payment Providers. You may need to provide certain information to our third-party payment providers (“Payment Providers”) for your purchase transactions. We do not save the payment information you provide to Payment Providers. Please see the Privacy Policy for more information.

8. Linking to the Services. Creating or maintaining any link from another web site to any page on the Services without our prior written permission is prohibited. Running or displaying the Services or any information or material displayed through the Services in frames or through similar means on another web site without our prior written permission is also prohibited. Any permitted links to the Services must comply will all applicable laws, rules, and regulations.

9. Third Party Links. The Services may contain links to websites that are not owned, operated, or controlled by SDES or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the Services. Neither we nor any of our respective affiliates are responsible for any content, materials, or other information located on or accessible from any other website. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other web sites or any content, materials, or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from the Services, you do so entirely at your own risk. Refunds of any products or services from Third Party providers are subject to their own policies and we are not responsible for such products or services.

10. Transactional Partners. In some cases, we partner with another company to co- promote their services within our Services. In these cases, you are transacting directly with the other party. On those pages, the transactional partners’ brand is clearly visible and their terms of service are posted. When using these partner pages, you are bound by partner terms of service in addition to remaining bound by these Terms. When there is a conflict between these Terms and the partner’s terms of service, these Terms will prevail.

11. Order Eligibility. You may only purchase products for personal use by either yourself or your intended recipient of the products; you may not purchase products for resale. SDES may refuse any order that it reasonably believes is intended for restricted use. SDES makes no promise that products or services available on the Services are appropriate or available for use in locations outside the United States, and accessing the Services from territories where the Contents are illegal or unlawful is prohibited. If you choose to access the Services from locations outside of the United States, you do so at your own risk. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws in regard to the possession, use, and sale of any item purchased through the Services.

12. Products, Content, and Specifications. All prices are displayed exclusive of all taxes and shipping charges. If you are located outside of the United States, please contact us at admin@sdesworks.com for pricing. All features, content, specifications, products, and prices of products and services described or depicted through the Services are subject to change at any time without notice. Packaging may vary from that shown. We undertake no obligation to update, amend, or clarify information on the Services, including, without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Services should be taken to indicate that all information available through the Services have been modified or updated. The inclusion of any products or services on the Services at a particular time does not imply or warrant that these products or services will be available at any time. Occasionally, the production or distribution of a certain product or service may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. By placing an order, you represent that the products ordered will be used only as set forth in these Terms.

13. Shipping Limitations. When an order is placed, it will be shipped to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained through the Services.

14. Return and Exchange Policy. You may return or exchange a product or service purchased through the Services if the product or service is defective for any reason within 30 days of the date of shipment or as described in your Educational Provider Agreement with SDES. You must contact SDES for return instructions at admin@sdesworks.com. If a return or exchange is due to an incorrectly delivered order or faulty product, SDES will be responsible for the shipping costs associated with such return. In all other cases, you will be responsible for the return costs.

15. Collections. You will be in default if you do not pay any sum when due or breach any representations you made to us in these Terms, or fail to perform any of your obligations at the time and manner specified in these Terms. We may discontinue providing you with goods and services, without notice, and/or terminate these Terms. In any such case, you will remain responsible for payment of all charges due to us under these Terms, which charges, including without limitation, will be immediately due and owing. If legal action is necessary to collect on balances due, you will reimburse SDES for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.

16. Privacy. Data collection and use, including data collection and use of personally identifiable information is governed by the Privacy Policy, which is incorporated into and is a part of these Terms.

17. Force Majeure. SDES will not be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond our reasonable control, including, without limitation: fire, acts of God, pandemic, war, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.

18. Representations and Warranties. You affirm, represent, and warrant that you are over the age of 18 and have the right and authority to enter into these Terms, and are fully able and competent to satisfy the terms, conditions, and obligations herein.

19. DISCLAIMERS. YOUR USE OF THE SERVICES IS AT YOUR RISK. THE INFORMATION, MATERIALS, AND SERVICES PROVIDED ON OR THROUGH THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, OR NON- INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER SDES, NOR ANY OF ITS AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS, OR SERVICES PROVIDED ON OR THROUGH THE SERVICES. THE INFORMATION, MATERIALS, AND SERVICES PROVIDED ON OR THROUGH THE SERVICES MAY BE OUT OF DATE, AND NEITHER SDES, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS, OR SERVICES. THE FOREGOING EXCLUSIONS OF

20. LIMITATIONS OF LIABILITY. SDES DOES NOT ASSUME ANY RESPONSIBILITY AND WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR ANY VIRUSES THAT MAY INFECT YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THE SERVICES, OR YOUR DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM THE SERVICES. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SITE OR SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. IN NO EVENT WILL SDES, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION, OR TRANSMISSION OF THE SERVICES, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES, ANY WEB SITES LINKED TO THE SERVICES, OR THE MATERIALS, INFORMATION, OR SERVICES CONTAINED ON ANY OR ALL SUCH WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

21. Indemnity. You agree to defend, indemnify, and hold SDES and any affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with: (i) the use of your account; (ii) your violation of any term of these Terms, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; or (v) any other party’s access and use of the Services with your unique username, password, or other appropriate security code.

22. Termination. We reserve the right to modify, update, or discontinue our Services, or any features, or portions thereof, without prior notice. You agree that we can suspend or terminate your right to access our Services at any time for any reason without notice, obligation, or liability to you. These Terms will remain in full force and effect while you use the Services unless stated otherwise in these Terms. We may suspend or terminate your rights to use the Services (including your account) at any time for any reason at our sole discretion. Upon termination of your rights under these Terms, your account and right to access and use the Services will terminate immediately. SDES will not have any liability whatsoever to you for any termination of your rights or accounts.

1. (a)  Disclosures. If you are a California resident, you may report complaints related to your Account or Service termination to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA, 95814, or by telephone at (800) 952-5210.

2. (b)  Electronic Communications. The communications between you and SDES use electronic means, whether you use the Services or send us emails, or whether SDES posts notices on the Services or communicates with you via email. For contractual purposes, you: (i) consent to receive communications from SDES in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SDES provides to you electronically will satisfy any legal requirements that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.

23. Stay Connected. To access and use the Services, you need to have and maintain adequate internet connection. You are fully responsible for obtaining and maintaining internet access.

24. Accessibility. We are committed to giving each user the best possible experience through our Services. If you have a concern about your access or ability to access our Services, let us know by filing a notice as described in Section 25(a) below.

25. Disputes and Claims.

(a) Notice of Dispute or Claim. You will not file any legal action against SDES in any forum without submitting a detailed description of your dispute or claim to SDES at admin@sdesworks.com (“Dispute”). The information you provide to us must include specific information about the Dispute such as the nature of the issue, the website page(s) affected by the issue, reference to any legal authority governing the issue, such as citations to state privacy laws, CANSPAM statutes, or similar regulations, and any other information a reasonable person would consider relevant to resolving the issue.

2. (b)  Resolution Process. SDES has ninety (90) days to respond to your email notice. If you send more than one (1) email notice, the 90-day response timeline applies separately to each email notice you send. If your issue is not resolved within ninety (90) days, you have thirty (30) days to request informal mediation about the issue with SDES. If SDES agrees to mediation, the mediation will take place in Seattle, Washington with a professional mediator to be mutually selected by the parties. The parties will split the costs of mediation equally.

3. (c)  Litigation. If a dispute between you and SDES cannot be resolved informally or through mediation, litigation may be commenced either in the district court of King County, Washington, for state court cases, or in the United States District Court for the Western District of Washington for federal court cases. Each Party agrees to submit to the exclusive jurisdiction of such courts with respect to any dispute(s) and agrees not to bring any dispute(s) in any other court or adjudicative body. Each Party hereby consents to venue and personal jurisdiction in such courts with respect to such dispute(s) and irrevocably waives any right that it may have to assert that such forum is not convenient or that any such court lacks jurisdiction.

4. (d)  Jury and Class Action Waiver. YOU WAIVE THE RIGHT TO A TRIAL BY JURY, TO PARTICIPATE IN A CLASS ACTION, OR TO SEEK REMEDIES BEYOND THE EXTENT NECESSARY TO PROVIDE INDIVIDUALIZED RELIEF. YOU AGREE NOT TO ACT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED OR DE FACTO CLASS OR REPRESENTATIVE PROCEEDING, OR AS A PRIVATE ATTORNEY GENERAL OR ON BEHALF OF THE GENERAL PUBLIC.

5. (e)  Time Limitation. Any Dispute(s) must be filed within two (2) years after the cause of action arose and you waive any statute of limitations to the contrary.

6. (f)  Governing Law/Attorney’s Fees. These Terms will be governed by the laws of Washington State without giving effect to applicable conflict of law provisions. The substantially prevailing party in any dispute litigation regarding any Dispute(s) will be entitled to recover reasonable attorney’s fees and costs, including expert costs.

7. (g)  Injunctive Relief. Your breach of these Terms is likely to cause immediate and/or irreparable harm to SDES. As such, we may seek injunctive relief against you without the need to post bond.

26. General. You and SDES are independent parties and nothing in these Terms creates an employment or agency relationship. The licenses we grant to you are for you and you alone. You may not transfer or assign these Terms or licenses without our express written consent. Any claim relating to, and the use of, the Services, and the materials contained herein is governed by the laws of the state of Washington. You consent to the exclusive jurisdiction of the state and federal courts located in King County, Washington. A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms and all incorporated agreements may be automatically assigned by SDES in our sole discretion. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

27. Entire Agreement. These Terms are the entire agreement between the user and SDES and supersede any prior understandings or agreements (written or oral).

28. Additional Assistance. If you do not understand any of the foregoing Terms or if you have any questions or comments, we invite you to contact us by email at admin@sdesworks.com .

29. Copyright Notice. All website designs, graphics, text selections, arrangements, and all software and products are Copyright © 2017-2024, Specially Designed Education Services, Inc. or its licensors. ALL RIGHTS RESERVED.