Last Updated: February 2017
These Terms of Service (“Terms”) apply to your access to, and use of, the websites, mobile applications and other products and services (collectively, the “Services”) of Otus LLC (“Otus,” “we,” or “us”). These Terms are solely between you and Otus, and not Apple, Inc. (“Apple”). Otus, and not Apple, is solely responsible for the Services and the content thereof.
Our mobile applications and web platform are licensed solely for purposes related to education. You may only use our Services if you are (a) a teacher, school administrator, professor, or other educator (including a home-schooling instructor) (collectively, “Educator”); (b) a student who is currently enrolled in an educational institution or home-schooling program and is authorized to use the Services as a student of a course of study available through the Services (“Student”); or (c) the parent or guardian of a Student.
These Terms do not alter in any way the terms or conditions of any other agreement you may have with Otus for products, services, or otherwise. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you violate these Terms.
Otus reserves the right to change or modify these Terms at any time and in our sole discretion. If Otus makes changes to these Terms, we will provide notice of such changes, such as by sending you a notification, by providing notice through the Services, or by updating the “Last Updated” date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure that you understand the terms and conditions that apply to your use of the Services. If you do not agree to any amended Terms, you must stop using the Services.
Otus will send advance invoices in accordance with the billing cycle chosen during sign up. In order to begin receiving Services, an Otus order form must be signed by your authorized representative and accepted by Otus. Otus will send the first invoice thirty (30) days after Services begin, or on the date specified in the accepted order form. All invoices must be paid within sixty (60) days or your Services are subject to cancellation. If you cancel the Services for a competing service, you will be refunded for whole months unused in a billing cycle. No partial month refunds can be made. In order to treat everyone equally, no exceptions will be made.
The price structure in place at the time of sign up is guaranteed for a period of two (2) years from the date of the first invoice. After two years, the subscription fees will adjust to Otus’ current rate if the annual fee for Services increased. If you are entitled to a price reduction, because your student FTE fell, then you must notify email@example.com in order to have your annual fee adjusted.
Additionally, evidence of our participation may be viewed here.
If you are installing, accessing or using the Services on behalf of a Student who is under the age of 13, you represent and warrant that (a) you are an authorized Educator who has obtained the consent of the Student’s parent or guardian in accordance with the Children’s Online Privacy Protection Act of 1998 (COPPA) for the Student’s use of the Services, or (b) you are the parent or guardian of the Student and you have provided your consent in accordance with COPPA to your Student’s Educator for your Student’s use of the Services.
Under the Family Educational Rights and Privacy Act 1974 (FERPA), schools are required, in some circumstances, to provide parents and guardians with the right to inspect and review the education records of their children and to obtain the consent of the parents or guardians of the student (or the consent of the student, if such student is 18 years of age or older or attending an institution of postsecondary education) prior to disclosing personal information about the student that is contained in the student’s education records.
If you are under the age of 18 (or the age of legal majority under applicable law), you may use the Services only under the supervision of a parent or guardian who agrees to be bound by these Terms. By using the Services, you represent and warrant that you (a) are eligible to use the Services as an Educator, Student, or parent or guardian of a Student; (b) have not been previously suspended or removed from the Services; and (c) have full power and authority to enter into this agreement and that, in doing so, you will not violate any other agreement to which you are a party.
In addition, when registering as a Student of a course of study, you will be required to enter the unique Otus code generated for that course. If you do not know the unique Otus code that was generated for the course of study for which you would like to register, please contact the Educator for that course.
In consideration of your use of the Services, you agree to (x) maintain and promptly update your general account information; (y) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us; and (z) promptly notify us if you discover or otherwise suspect any security breaches related to the Services.
Unless otherwise indicated through the Services or by Otus, the Services and all content and other materials therein, including, without limitation, the Otus logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Otus or our licensors or users and are protected by U.S. and international copyright laws.
With respect to our mobile applications, you are hereby granted a limited, nonexclusive, non-sublicensable license to access and use the mobile application and Content contained therein on any iOS product that you own or control, which includes iOS products owned and controlled by Educators and Students, and solely as permitted by the Usage Rules set forth in the Apple App Store Terms and Conditions. With respect to all our Services, you are hereby granted a limited, nonexclusive, non-sublicensable license to access and use the Services and Content. The licenses granted in this section are subject to these Terms and do not include (a) resale or commercial use of the Services or the Content therein; (b) the distribution, public performance or public display of any Content (except to Students over the Educator’s internal network); (c) modifying or otherwise making any derivative uses of the Services or the Content, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Services, the Content or any information contained therein, except as expressly permitted on the Services; and (f) use of the Services or the Content other than for their intended purposes. These Terms also govern any updates to, or supplements or replacements for, the Services, unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
Any use of the Services or the Content other than as specifically authorized herein, without the prior written permission of Otus, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein or otherwise by Otus, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Services and the Content may contain software components that are subject to separate license terms, in which case those license terms will apply to the access and use of such software components.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, Otus has adopted a policy of terminating, in appropriate circumstances and in Otus’ sole discretion, account holders or other users of the Services who are deemed to be repeat infringers. Otus may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Services infringes any copyright, which you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: Keith Westman, Ed.D.
Address: 1000 West Fulton Market, Suite 285, Chicago, IL 60607
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Otus” and the Otus logo and any other Otus product or service names, logos or slogans that may appear on the Services are trademarks of Otus in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Otus or the applicable trademark holder. You may not use any metatags or other “hidden text” utilizing “Otus” or any other name, trademark, or product or service name of Otus without our prior written permission. You may use Otus logos in internal presentations and trainings presentations relating to our Services. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Otus and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation by Otus.
You are granted a limited, nonexclusive right to create a text hyperlink to the Services for noncommercial purposes, provided that such link does not portray Otus or any of our products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing, or otherwise objectionable. This limited right may be revoked at any time. You may not use an Otus logo or other proprietary graphic of Otus to link to the Services without the express written permission of Otus. Further, you may not use, frame, or utilize framing techniques to enclose any Otus trademark, logo, or other proprietary information, including the images found at the Services, the content of any text or the layout/design of any page or form contained on a page on the Services without Otus’ express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright or proprietary right of Otus or any third party.
Otus makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third-party websites accessible by hyperlink from the Services, or websites linking to the Services. Such sites are not under the control of Otus, and Otus is not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. Otus provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Otus of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services.
Otus or other users of the Services may provide third-party content through the Services and may provide links to web pages and content of third parties (collectively, “Third-Party Content”). Otus does not control, endorse, or adopt any Third-Party Content and makes no representation or warranties of any kind regarding any Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Otus is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use such Third-Party Content contained therein at their own risk.
Otus permits you to associate your access credentials for certain third party services (“Third Party Accounts”) with your Otus account. When you establish a linked account, you may sign into Otus and automatically connect to your Third Party Accounts at the same time. Otus is not responsible or liable in any manner for the operation or functionality of Third Party Accounts and undertakes no responsibility to update, maintain or review any Third Party Accounts. You further acknowledge and agree that Otus will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such Third Party Accounts, goods or services available on or through any such Third Party Accounts, or data provided by or to any Third Party Accounts.
Advertisements and promotions will not be served to Students through our Services. Otus may display advertisements and promotions to Educators and administrators from third parties on the Services or may otherwise provide information about or links to third-party products or services on the Services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions are solely between you and such third party. Otus is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of third-party information on the Services.
The Services may include discussion forums, blogs, or other interactive features or areas in which you or other users may create, post, transmit, access or store content, including but not limited to text, files, folders, music, sound, photos, videos, graphics, code, items or materials (collectively, “User Content”). You understand that your User Content may be viewable by others, including, in some instances, by the public. You agree that you are solely responsible for your User Content and for your use of such interactive features or areas, and that you use them at your own risk.
By using the interactive areas of the Services, you agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through the Services any of the following:
You further agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while on the Services. You agree that you will abide by these Terms and will not:
Otus is not responsible or liable for the conduct of, or your interactions with, any users of the Services (whether online or offline), nor is Otus responsible or liable for any associated loss, damage, injury, or harm. Enforcement of these Terms is solely in Otus’s discretion, and the absence of enforcement of these Terms in some instances does not constitute a waiver of Otus’s right to enforce these Terms in other instances. In addition, these Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Services will not contain any content that is prohibited by these Terms. As a provider of interactive services, Otus is not liable for any statements, representations or User Content provided by our users through the interactive area of the Services. Although Otus has no obligation to screen, edit or monitor any User Content, Otus reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
Any use of the Services in violation of these Terms may result in, among other things, termination or suspension of your rights to use the Services.
You retain all ownership rights in the User Content you submit to Otus. By submitting or posting User Content through the Services, you grant Otus a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such User Content (a) in connection with the Services and (b) in an anonymized, de-identified or aggregated form for marketing, research and analytical purposes. By submitting or posting User Content through the Services, you represent and warrant that (i) such User Content is non-confidential; (ii) you own and control all of the rights to the User Content that you post or you otherwise have all necessary rights to post such User Content to the Services; (iii) the User Content is accurate and not misleading or harmful in any manner; and (iv) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, or regulation.
You can submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Otus and the Services to Otus (collectively, “Feedback”). Feedback, whether submitted through the Services or otherwise, is non-confidential and shall become the sole property of Otus. Otus will own exclusive rights, including all intellectual property rights, in and to such Feedback and will be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby irrevocably assign all right, title, and interest in and to such Feedback to Otus.
You agree to defend, indemnify, and hold harmless Otus and our partners, independent contractors, service providers and consultants, and our respective directors, officers, employees and agents (collectively, the “Otus Parties”) from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) your use of the Services (including without limitation any actions taken by a third party using your account, except when such claims are caused in whole by Otus; (b) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Services; (c) any Feedback you provide; (d) your violation of these Terms; or (e) your violation of the rights of another.
In the event of any claim that the Services, or your possession or use thereof, infringes any third party’s intellectual property rights, you agree to contact Otus directly, and Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Otus will, at our option and expense, investigate, settle, defend and/or discharge the claim.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY OTUS, THE SERVICES AND THE CONTENT CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. OTUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES AND THE CONTENT CONTAINED THEREIN. OTUS DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
IN THE EVENT OF ANY FAILURE OF OUR MOBILE APPLICATIONS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE (IF ANY) OF THE MOBILE APPLICATIONS TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE HAS NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO OUR MOBILE APPLICATIONS AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF OUR MOBILE APPLICATIONS.
OTUS IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY. WHILE OTUS ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, OTUS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Otus reserves the right to change any and all content contained in the Services and to modify, suspend or discontinue the Services or any features or functionality of the Services at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Otus. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
IN NO EVENT SHALL OTUS OR THE OTUS PARTIES BE LIABLE TO YOU FOR (A) ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM OTUS, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OTUS’S RECORDS, PROGRAMS OR SERVICES, OR (B) ANY MATTER BEYOND OUR REASONABLE CONTROL, INCLUDING THE ACTIONS OF OTHER USERS OF THE SERVICES OR OTUS’S SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OTUS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR TO THESE TERMS EXCEED THE GREATER OF (I) ONE HUNDRED DOLLARS ($100) OR (II) THE AMOUNTS PAID BY YOU TO OTUS FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
Otus, and not Apple, is responsible for addressing any questions, comments or claims relating to the Services and/or your possession and use of the Services, including but not limited to: (a) product liability claims; (b) any claim that the Services fail to conform to the applicable legal or regulatory requirements; or (c) any claims arising under consumer protection or similar legislation. If you have any questions or comments, please contact us at firstname.lastname@example.org.
Otus reserves the right to modify or discontinue, temporarily or permanently, the Services or any features or portions thereof without prior notice. Otus will use reasonable efforts to provide you with advance notice of any such modification or discontinuance to the extent, in Otus’ reasonably judgment, it is reasonably practicable to do so based on the nature of the circumstances giving rise to the modification or discontinuance. You agree that Otus will not be liable for any modification, suspension, or discontinuance of the Services or any part thereof.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH OTUS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM OTUS.
You and Otus agree to arbitrate any dispute arising from these Terms or your use of the Services, except that you and Otus are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Otus agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Otus shall be sent to Otus LLC, Attn: Legal, 1866 Sheridan Road, Suite 316, Highland Park, IL, 60035. You and Otus further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in Chicago, Illinois; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (d) that the state or federal courts resident in Chicago, Illinois have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by these Terms and the laws of the State of Illinois and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND OTUS WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR REPRESENTATIVE ACTION OR PROCEEDING.
Otus, and not Apple, is solely responsible for providing technical support services in connection with the Services. In addition, Apple and your wireless carrier have no obligation whatsoever to furnish any maintenance or support services with respect to the Services. For support materials or to submit a support ticket, please see our support services page here: http://knowledge.otus.com/.
You may not use or otherwise export or re-export the Services, except as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list.
Apple and its subsidiaries are third party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
The Terms may be terminated at any time, for any reason by mutual agreement of the parties. You may terminate the Services for convenience upon thirty (30) days’ prior written notice to Otus. Notwithstanding any of these Terms, Otus reserves the right, without notice and in our sole discretion, to terminate your right to use the Services, or any portion of thereof, and to block or prevent your future access to and use of the Services or any portion thereof.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
If you have any questions or comments about the Services or these Terms, please contact us at:
1000 W Fulton Market Suite 285