Last Updated September 7, 2023
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND VERNIER RELATED TO THE APPLICATIONS.
PLEASE READ THESE TERMS CAREFULLY. By downloading, installing, or using an Application in any manner, you accept and consent to these Terms and all documents incorporated by reference. You can also accept these Terms by clicking to accept or agree to these Terms where that option is made available in any agreement or electronic form. If you are downloading, using, or accessing an Application on behalf of a school district, school, or other legal entity (in each case, a “School”), all references to “you” herein shall include you personally, the School and its Users (defined below) and you represent and warrant that you are authorized to act on behalf of the School and to bind such School to these Terms. These Terms will remain in effect while you use an Application or the Application remains downloaded on your device. If you do not agree to these Terms, do not use any of the Applications in any manner and delete all Applications from all devices.
Vernier designs the Applications to collect minimal or no Personal Information about students or other individual users who access, download, install, or use an Application using your software license key (“Users”). You acknowledge that when the Application is downloaded, installed, or used, Vernier may collect certain information about the devices upon which the Application is installed, and/or require that the Application, and/or certain components thereof, be activated with a software license key. To the extent that any User Personal Information is collected (such as during the Application activation process), the Vernier Applications Privacy Notice shall apply to such collection.
United States federal laws such as the Family Educational Rights & Privacy Act (“FERPA”), the Children’s Online Privacy Protection Act (“COPPA”), and certain U.S. state laws offer privacy protections for children and students. You acknowledge and agree that each School that uses Vernier Applications is responsible for complying with all legal requirements (including FERPA). Vernier is not liable for any noncompliance with such legal requirements by a School or individual educator.
By downloading, installing, accessing, using, and providing information to or through an Application or permitting its Users to do so, you (a) acknowledge that you have read and agree to the Vernier Applications Privacy Notice, (b) consent to all actions taken by Vernier with respect to School’s and your Users’ Personal Information in compliance with such Privacy Notice, (c) represent and warrant that any information you submit to us is truthful and accurate and you will maintain the accuracy of that information, and (d) agree to be solely responsible for securing any and all privacy-related rights and permissions from Users and other individual persons as may be required by regulation, statute, other law, the Vernier Applications Privacy Notice, or your internal policies or guidelines.
The Application is provided to you under the License, and not sold, to you. Nothing in the License or these Terms is intended to or may be construed as, conferring by implication, estoppel, or otherwise any ownership, license, or other grant of right to any copyright, trademark, or other intellectual property of Vernier or any third party, except as expressly provided in these Terms. Vernier reserves all rights not expressly granted herein.
By using the Application and its features, you represent and warrant that (i) any information you submit to us is truthful and accurate, (ii) you will maintain the accuracy of that information, and (iii) your use of the Application and its features does not violate any applicable law, rule, or regulation. Any information that you provide to us will also be subject to our Privacy Notice.
If you are a School, you agree that you: (i) are solely responsible for compliance with these Terms by your Users (ii) are solely responsible for the accuracy of your User count and the School’s account under your Subscription Agreement, and for the accuracy and legality of any and all data collected or input to the Application by the School or its Users, (iii) will use commercially reasonable efforts to prevent unauthorized access to or use of the Application, and notify Vernier promptly of any unauthorized access or use, (iv) use the Application only in accordance with these Terms, application documentation, and all applicable law, and (v) comply with the terms of service of any third party software with which the School uses the Application. Any use of the Application in violation of the foregoing by you or your Users that in Vernier’s judgment threatens the security, integrity, or availability of the Application may result in immediate suspension of access to the Application.
You may only use the Application (and may only permit its Users to use the Application for educational and non-commercial purposes on the number of devices set forth in the Subscription Agreement (the “Field of Use”). You agree, represent, and warrant that you and your Users will not use the Application outside of the Field of Use, including, but not limited to taking any of the following actions:
This section is in addition to and not in any way in lieu of the terms and conditions set forth in Vernier’s Legal Center.
To download and use the Application, you must have a compatible computer or handheld device, internet access (if required by the Application), and the necessary minimum specifications (“Technical Requirements”). The Technical Requirements for Apple iOS devices and Android OS devices can be found on vernier.com. Vernier may upgrade the Application from time to time to add support for new functions and services. The Application may request certain privacy permissions from time to time including, but not limited to, access to your device camera, choosing images from your device, or access to your device microphone and associated features. You acknowledge that the terms of the agreement with your mobile network provider will continue to apply when using the Application. Data and messaging charges may apply to your use of the Application or any text messaging or photo sharing features you use via the Application. You may also incur third-party charges. You accept responsibility for any such charges that arise. If you are not the bill payer for the mobile device being used to access the Application, it will be assumed you have received permission to use the Application from the bill payer.
You may not use the Application (including the Contents) for any purpose not expressly stated in these Terms, including in any way that is unlawful or might confuse or disparage Vernier. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Application or any portion of it (including the Content) or use it in any manner not expressly authorized by these Terms. You further agree not to copy, reverse engineer, translate, port, modify, or make derivative works of any portion of the Application. Tampering with the Application, conducting fraudulent activities on the Application, and all other illegal activities are prohibited and may subject a user to legal action and/or termination of access to the Application. The permissions described herein will terminate automatically if you breach any of these Terms. Any other use of the Application, including reproduction of the Content for purposes other than as noted above, without the prior written permission of Vernier, is strictly prohibited.
From time to time, we may, in our sole discretion, develop and provide updates to the Applications, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your device settings, when an internet-connected device is connected to the internet, either (i) the Application will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. You agree to promptly download and install all Updates and acknowledge and agree that our Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to these Terms.
You agree to at all times comply with all applicable local, state, federal, and foreign laws in using the Application. Vernier makes no representation that the Application complies with legal or regulatory requirements of jurisdictions outside the United States. You acknowledge and agree that you are solely responsible for notifying Vernier if your use of the Application or any component thereof or any provision of these Terms violates any law, regulation, or rule of your locality. Use of the Application from jurisdictions where such access is illegal is prohibited. If you or any User chooses to use the Application from other jurisdictions, you do so at your own initiative and are responsible for compliance with applicable local laws. Vernier is not responsible for any violation of law in relation to your use of the Application.
IMPORTANT NOTICE REGARDING YOUR CONSUMER RIGHTS. Nothing in these Terms is intended to or will have the effect of limiting any of your rights under the laws of your country of residence, including rights as to the quality and fitness for the purpose of the Application.
You are strictly prohibited from violating or trying to violate the security features of the Application, such as by:
You hereby agree not to use any device, software, or routine to interfere or try to interfere with the proper working of the Applications or any use thereof. You further agree not to use or try to use any engine, software, tool, agent, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Applications other than the search engine or search agent we make available on the Application. If you violate our system or network security, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
You or your Users may submit comments and suggestions regarding the Application to Vernier, such as improvements, enhancements, and modifications of the Application (“Feedback”). You, on behalf of yourself, your School, and your Users, hereby assign to Vernier all right, title, and interest to all such Feedback and all property rights in the Feedback, including all copyright, patent, trade secret, trademark, and other intellectual property rights. You agree not to give Vernier any Feedback that you have reason to believe is subject to any intellectual property claim or right of any third party, or subject to license terms that seek to require Vernier to license the Application to any third party.
Vernier may, in its sole discretion, make free, trial and/or beta offerings of the Application available to you. Because free, trial, or beta offerings are different from paid subscriptions, special terms apply to them.
These Terms are in addition to, and not in lieu of, any additional, separate terms and conditions, license terms, or documentation pertaining to one or more Applications that apply to your download, installation, or use of certain Applications and are provided to you (collectively, “Agreements”). All such Agreements and Legal Center terms and conditions are incorporated herein by this reference and shall be in addition to, and not in lieu of, these Terms. These Terms do not limit or supersede terms and conditions in the Agreements or Legal Center pertaining to your use of the Applications or other Vernier products or services.
The Application may comprise, include, display, link to, or otherwise access or make available third-party content (including third-party software code, data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials”). Included in these Third-Party Materials is the Application’s use of the FFmpeg multimedia framework under the GNU Lesser General Public License (LGPL) version 2.1. You acknowledge and agree that Vernier is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Vernier does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. You acknowledge that you are responsible for obtaining all appropriate licenses for the use of any third-party operating system or application. Third-Party Materials and links thereto are provided solely as a convenience and you as a School or otherwise and your Users access and use them entirely at their own risk and subject to such third parties’ terms and conditions.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPLICATIONS IS AT YOUR SOLE RISK. THE APPLICATIONS ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITH ALL FAULTS AND DEFECTS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, VERNIER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
WITHOUT LIMITING THE FOREGOING, VERNIER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATIONS WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER PRODUCTS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. ALTHOUGH WE BELIEVE THE CONTENT TO BE ACCURATE, COMPLETE, AND CURRENT, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THE APPLICATIONS IS ACCURATE, COMPLETE, OR CURRENT. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM VERNIER, ITS OFFICERS, EMPLOYEES, OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS VERNIER AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, AND CONTRACTORS FROM AND AGAINST ANY CLAIMS, SUITS, ACTIONS, DEMANDS, DISPUTES, ALLEGATIONS, OR INVESTIGATIONS BROUGHT BY ANY THIRD PARTY, GOVERNMENTAL AUTHORITY, OR INDUSTRY BODY, AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, AND EXPENSES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (A) YOUR ACCESS TO OR USE OF THE APPLICATIONS; (B) YOUR DATA; (C) YOUR BREACH OR ALLEGED BREACH OF ANY WARRANTIES MADE BY YOU HEREIN OR YOUR VIOLATION OF ANY AGREEMENT BETWEEN YOU AND VERNIER; OR (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY. VERNIER RESERVES THE RIGHT TO ASSUME CONTROL OF THE DEFENSE OF ANY THIRD-PARTY CLAIM THAT IS SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES. This Section 12 shall not apply to the extent that the laws governing a School’s jurisdiction prohibit the School from indemnifying or holding harmless Vernier.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VERNIER OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS OR ANY OF ITS OR THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, SUPPLIERS OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU, YOUR SCHOOL, OR ANY OTHER PERSON RELATED TO OR ARISING OUT OF USE OF THE APPLICATIONS, INCLUDING, WITHOUT LIMITATION, FOR SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE; LOSS OR COMPROMISE OF DATA, PROFITS, OR GOODWILL; BUSINESS INTERRUPTION; OR COMPUTER FAILURE OR MALFUNCTION; PERSONAL INJURY OR PROPERTY DAMAGE, OR OTHER DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, COPYING, OR DISPLAY OF THE APPLICATIONS. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, STRICT LIABILITY, MISREPRESENTATION, PRODUCTS LIABILITY, VIOLATIONS OF LAW (INCLUDING REGULATIONS), NEGLIGENCE, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER VERNIER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU OR YOUR SCHOOL. WITHOUT LIMITING THE FOREGOING PROVISIONS OR THE PROVISIONS OF OUR PRIVACY NOTICE IN ANY WAY, THE LIMIT ON TOTAL CUMULATIVE LIABILITY OWED BY VERNIER TO YOU OR ANY PERSON FOR ANY CLAIMS ARISING FROM OR RELATING TO THE APPLICATIONS SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU OR YOUR SCHOOL TO VERNIER FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM ARISES OR ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT CONTAINS A CLASS ACTION WAIVER, REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
We want to address your concerns without the use of a formal legal case. Before filing a claim against Vernier, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. Vernier will contact you by email as part of a good-faith effort to resolve the Dispute informally. If a Dispute is not resolved within 30 days after submission, you or Vernier may bring a formal proceeding.
Either you or Vernier may assert claims, if they qualify, in small claims court in Portland, Oregon, or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of our Applications or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
You may only resolve Disputes with Vernier on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.
Regardless of any statute or law to the contrary, any claim or cause of action related to your use of the Applications must be filed within one (1) year after such claim or cause of action arose, or else the claim or cause of action will be barred forever.
If these Terms are between Vernier and a School, these Terms shall be governed by and construed in accordance with the laws of the state where the School is located and all claims relating to these Terms or use of the Applications shall be instituted exclusively in the federal and state courts of the state where School is located, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. For all other purposes, these Terms shall be governed by and construed in accordance with the laws of the United States and the State of Oregon and all claims relating to these Terms or use of the Applications shall be instituted exclusively in the federal and state courts of the State of Oregon, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. On behalf of yourself and, if applicable, your School, you waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts as described in this paragraph.
You agree to comply with all applicable laws. Without limiting the foregoing, you agree to comply with all United States export laws, rules, and regulations, including but not limited to Export Administration Regulations, and applicable import laws of your locality (if you are not located in the United States), and you agree not to export the Application or any component thereof without first obtaining all required authorizations or licenses. You shall be responsible for any breach of this Section 15 by you or your Users.
The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
Notwithstanding any contrary provision in these Terms, no provision of these Terms shall be interpreted with respect to a School in a manner that would (a) pledge the credit of the state where the School is located or (b) require the payment of penalties or gratuities where prohibited by law in the jurisdiction where the School is located.
These Terms and the Agreements incorporated herein (together with the notices, documents, and terms and conditions referenced herein) constitute the entire agreement between the parties with respect to the subject matter hereof. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect. Provisions of these Terms that by their nature should survive the termination or expiration of these Terms shall survive.
Unless terminated earlier in accordance with the terms of these Terms, the Term commences on the date you first download or access the Application, whichever occurs sooner, and continues until your free access expires or your subscription term expires, whichever occurs later. Upon renewal of your subscription or free access, these Terms shall automatically renew for the duration of such renewal term unless terminated earlier in accordance with the terms of these Terms.
Vernier may terminate these Terms upon 30 days’ notice to you, or at any time without notice if it ceases to support the Application, which Vernier may do in its sole discretion or if Vernier learns that you failed to comply with any of the terms and conditions of these Terms or the Subscription Agreement. In addition, these Terms will terminate immediately and automatically without any notice if you or any of your Users violate any of the terms and conditions of these Terms. Upon termination, all rights granted to you under these Terms will also terminate; and you must cease all use of the Application, cause all copies of the Application to be deleted or uninstalled from its Users’ devices, and return or destroy any accompanying documentation in its possession or control. Termination will not limit any of Vernier’s rights or remedies at law or in equity.