Welcome to Keep Playing and/or PlayworksU, operated by Playworks Education Energized (“Playworks” or “we” or “us” or “our”). Playworks is a nonprofit organization that believes in and promotes the power of play to bring out the best in every child. PlayworksU is an online platform that aims to provide its users with the knowledge, tools, and ongoing support they need to facilitate safe and healthy play and make the most out of recess. PlayworksU provides Playworks-produced online course materials, including instructional videos. Keep Playing provides weekly, curated content including video tutorials of games that practice SEL skills, Brain Breaks, and other resources.
By subscribing to Keep Playing and/or PlayworksU (“Digital Services”), you acknowledge that you have read, understood, and agree to be bound by the terms and conditions of this agreement (“Agreement”). Playworks reserves the right, at our discretion, to change, amend, and/or modify this Agreement at any time. It is your responsibility to review this Agreement periodically for changes.
1. Subscription
Subscription Type
Playworks offers access to Digital Services through different types of subscriptions. A “Subscription” refers to a right to use the applicable portion of Digital Services as specified in the statement of work or online form and/or confirmation you completed and received when you initially subscribed to Digital Services (“Order Form”).
Subscription Term
You may access Digital Services for the term specified in the Order Form. In the case of PlayworksU purchases made solely online, you may access Digital Services for one year from the purchase confirmation email and any applicable renewal period.
Ongoing Subscription
Following the initial term, your Subscription will continue in effect on a recurring basis corresponding to the term of your Subscription unless and until you elect to cancel your Subscription. We will bill the periodic Subscription fee to the payment method you previously provided to us. If you elect to cancel your Subscription, cancellation will be effective at the end of the then-current term and you will have continued access to Digital Services for the remainder of that period, but you will not receive a refund.
Termination by Playworks
Playworks may at any time suspend or terminate your access to Digital Services if you fail to make timely payment of fees or if Playworks, in its discretion, determines that you or your users have failed to comply with the Order Form or the terms and conditions of this Agreement. Such termination will be effective upon its delivery to you of a notice to that effect. Upon termination, your Subscription and your right to use the Digital Services will cease. You will not be entitled to any refund.
1.5 Termination for Convenience or Discontinued Product
Should Digital Services be discontinued or sold, Playworks will provide 30 days notice to subscribers and refund the prorated value of the remaining Subscription period.
2. Intellectual Property
Ownership
Playworks is the sole owner of all instructional videos, images, guides, tools, publications, resources, quizzes, surveys, content, and other materials provided on Digital Services (“Playworks Content”) and retains all rights, title, and interest in Playworks Content. All Playworks Content is copyrighted and/or protected by national and international copyright and intellectual property laws. Playworks may also reference external sources and will explicitly cite all content that is not exclusively owned by Playworks.
License Grant
The Digital Services are offered for non-commercial use. As a subscriber, Playworks grants you a limited, non-exclusive, non-transferable, and non-sublicensable license to access and use the portion of Digital Services that is applicable to your Subscription type, and the related Playworks Content, solely for non-commercial purposes, in accordance with this Agreement. You may use, download, and distribute Playworks Content for non-commercial purposes within your subscribed organization or household, so long as you provide appropriate attribution to Playworks and do not remove or obscure any Playworks copyright or trademark markings on any Playworks Content. Downloading and posting Playworks Content on social networks or other digital content platforms without Playworks’ permission is prohibited. You may not distribute any Playworks Content for any purposes intended or directed toward commercial advantage or monetary compensation, or distribute to non-Users User-created derivatives or revisions of any Playworks Content.
References
Neither you nor Playworks may identify each other as a “user” or “partner” in internal or external communications, including, without limitation, on website or outreach materials, or use each other’s name, logo, or other marks, without prior written permission from the other.
4. Users and Accounts
Organization Users
For organizations, only the organization’s personnel may access Digital Services. One individual, identified on the Order Form, will act as the account owner and be responsible for managing the relationship with Playworks. You will limit access to Digital Services to the number of personnel specified in the Order Form and authorized by you to use Digital Services. You will direct your personnel to use Digital Services for only educational purposes.
Individual Users
For individuals, only the individual named on the Order Form may access Digital Services.
User Account Log-ins
Each user will set up an account with a unique username and password (collectively “Log-in”). You will ensure that each Log-in is used only by the user to whom it was assigned, and will not be shared with or used by any other person. Multiple concurrent use with the same Log-in is prohibited. Organizations may reassign Log-ins to personnel who are replacing former users who have terminated employment or changed job function, so long as the total number of active users does not exceed the maximum number specified in the Order Form. Playworks reserves the right to periodically review the number of users per subscriber and charge a fee per subscriber if there is an overage.
User Account Security
You will not permit any third party to use your Log-ins at any time and will notify Playworks promptly of any actual or suspected unauthorized use of your Log-ins. For organizations, you are solely responsible for all access to and use of Digital Services by your individual users, for maintaining the confidentiality of all Log-ins, and for all activities that occur under these Log-ins.
Terms of Use; Privacy Policy
Each user who accesses Digital Services will be bound by these terms and agreement and Privacy Policy. For organizations, you are solely responsible for your individual users’ compliance with this Agreement and the Privacy Policy.
4.6 Website Security
We take precautions to host and maintain Digital Services websites and to safeguard data from unauthorized use. We cannot, however, ensure or warrant the security of any or all of the information you transmit to Digital Services, and you do so at your own risk. As a result, you acknowledge that: (a) there are security and privacy limitations of the internet which are beyond Playworks’ control; (b) the security, integrity, and privacy of any and all information and data exchanged between you and Playworks through Digital Services cannot be guaranteed and we will have no liability to you or any third party for loss, misuse, disclosure, or alteration of such information; and (c) any such information and data may be viewed or tampered with in transit by a third party.
4.6 User Content
You represent and warrant that any content you provide, upload, or post to Digital Services does not violate the privacy, publicity, copyright, contract rights, or any other rights of any person or entity.
4.7 No Confidential Information
You should not send us any confidential or sensitive information when using Digital Services. You are responsible for ensuring that any disclosures to Playworks through Digital Services do not violate applicable laws, contracts, or other obligations relating to confidentiality, privacy, or similar matters.
4.8 Prohibited Content
You will not transmit, upload, display, perform, or otherwise distribute any content that (a) is harassing, discriminatory, retaliatory, abusive, libelous, defamatory, obscene, pornographic, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any intellectual property, privacy, employment, or other applicable local, state, national, or foreign law or regulation by which you are bound; (c) advertises or otherwise solicits funds or is a solicitation for goods or services; (d) violates the Privacy Policy or discloses confidential information; or (e) disables, damages, or impairs Digital Services, or interferes with any other party’s use and enjoyment of Digital Services, including, without limitation, uploading or otherwise disseminating any virus or other malicious code.
4.9 No Reverse Engineering
You will not reverse engineer, decompile, or otherwise attempt to recreate or discern the underlying structure or makeup of Digital Services, including altering any copyright notices.
5. Site Maintenance
5.1. Availability of Website
You understand that traffic of data through the internet may cause delays during the display or download of information from Digital Services. Playworks will use commercially reasonable efforts to maintain continuous availability of Digital Services, except for scheduled maintenance, required repairs, and any interruption due to causes beyond the reasonable control of or not reasonably foreseeable by Playworks, including, without limitation, any event described in the section entitled “Force Majeure”.
5.2. Changes to the Site
Playworks, in its discretion, may upgrade, modify, change, or enhance Digital Services at any time without notice. We do not undertake any obligation to notify you of any updates to Digital Services, or Playworks Content, including any Playworks Content you previously viewed or downloaded.
6. Fees and Payment
Fees
You will pay all fees applicable to your Subscription type.
Payment by Credit Card or Debit Card
You will provide Playworks with valid and updated credit card or debit card information. You authorize Playworks to charge such credit or debit card for the applicable Subscription for the initial Subscription term and any renewal term(s). Such charges will be made in advance on an annual basis.
Other Forms of Payment
If the Order Form specifies that payment will be by a method other than a credit or debit card, Playworks will invoice you in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced amounts are due thirty (30) days from the invoice date.
Billing and Contact Information
You are responsible for providing complete and accurate billing and contact information to Playworks and notifying us promptly of any changes to such information.
7. Data Collection and Privacy
Data Collection and Evaluation
We will collect and analyze data about how Digital Services is being used in order to evaluate our impact, develop improvements, meet external reporting requirements, and support fundraising and school recruitment. You acknowledge that Playworks will own and retain all rights, title, and interest in the data collected through Digital Services. Playworks Privacy Policy can be found at: https://www.playworks.org/about/privacy-policy/
External Reporting
We report data and evaluation results, including, but not limited to Recess Checkup, to funders, partners, researchers, and other third parties. Except as contemplated by this Agreement or as required by law, we will disclose data and results on a no-name basis collected through Digital Services unless you have given prior written consent for disclosure of names of schools or other individuals in such disclosure. Please refer to our Privacy Policy for more information on third party links.
8. Disclaimer; No Warranties
Disclaimer & No Warranties
Digital Services is provided “as is,” “as available,” and “with all faults” without any express or implied warranties and no advice or information, whether oral or written, obtained from Playworks or through Digital Services will create any warranty not expressly made in this Agreement. To the fullest extent permissible under applicable law, Playworks expressly disclaims any and all implied warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. We make no representations or warranties of any kind, whether oral or written, whether express, implied, or arising by statute, custom, course of dealing, or trade usage, with respect to: (a) the availability, timeliness, accuracy, quality, security, or reliability of Digital Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of Digital Services; (c) the deletion of, or the failure to store or to transmit, any content or other communications; (d) whether Digital Services will meet your needs; and (e) any third party links, services, or information.
User Decisions
Playworks has no responsibility for your decisions or actions with respect to use of instructional videos, images, guides, tools, publications, resources, quizzes, surveys, and other materials provided on Digital Services. You are responsible for making your own evaluations, decisions and actions regarding use of Playworks Content and for the outcomes and consequences of such use. Playworks has not evaluated your facilities, environment, or personnel, and makes no representations or recommendations about the suitability of Playworks Content for you or your organization.
No Representations or Guarantees
You acknowledge that Playworks has not made and is not making any representations, warranties, promises, or guarantees of any kind about the success or outcome of use of Playworks Content including, without limitation, representations about improvements in school environment, academic performance, or student development. You and your organization are entirely responsible for use of Playworks Content.
Not Substitute for Physical Education
You acknowledge that use of Playworks Content is not a substitute for physical education or the work of credentialed physical education teachers. Playworks will not provide input or otherwise be involved in any way with respect to assigning grades to students in physical education courses or programs.
9. Liability and Indemnification
Limitation of Liability
Playworks will not be liable to you for any special, indirect, incidental, consequential, punitive, or exemplary damages arising out of or relating to this Agreement, even if Playworks has been apprised of the likelihood of such damages. In no event will Playworks be liable to you for damages arising out of or relating to (a) your inability to use Digital Services, to train other users in your organization, if applicable, or any decision or action by you in reliance upon Digital Services, or (b) the procuring, compiling, interpreting, editing, writing, reporting, or delivery of Digital Services. Playworks’ total liability under this Agreement will not exceed the amount of fees paid by you or your organization for your Subscription during the twelve-month period preceding the event giving rise to such claim or two hundred dollars, whichever is greater, except that no such limitation will apply in respect of liabilities involving the gross negligence, willful misconduct, or fraud of Playworks.
Indemnification
You will indemnify, defend, and hold Playworks and its directors, officers, employees, agents, and assigns (collectively, “Playworks Indemnified Parties”) harmless against all claims, liabilities, losses, damages, and expenses, including reasonable attorneys’ fees and expenses, relating to or arising out of use of Digital Services, or your actions or other matters related to your use of Digital Services, including, without limitation, any claims by students, parents, or other third parties arising from a user’s activities or your use of Playworks Content. You will not have any obligation to indemnify any Playworks Indemnified Party to the extent the liability is solely caused by the gross negligence, willful misconduct, or fraud of such Playworks Indemnified Party.
10. Changes to this Agreement
Playworks reserves the right to make changes to this Agreement, at any time without notice. Changes are effective immediately upon posting and your continued use of Digital Services and/or Keep Playing constitutes acceptance of such changes. The current Agreement can be found here.
11. Third Party Services and Links
Third Party Services
Services created by third party developers may be available to you on Digital Services, including, without limitation, applications, websites, and other services. When you engage with a third party service, you are interacting with the third party, not with Playworks. You understand that the service will be governed by its own terms and conditions, and that the service may use and share your data in accordance with the privacy policy of and your privacy settings on such service.
Third Party Links and Information
Digital Services may contain links to other websites that are not operated by or related to Playworks. Playworks is not responsible for the content, accuracy, or opinions expressed in such third party websites, and does not investigate, monitor, or check these websites for accuracy or completeness. The inclusion of any linked website in Digital Services does not imply approval or endorsement of the linked website by Playworks. Please refer to our Privacy Policy for more information on third party links.
Linking to the Site
Use of the Playworks marks or logo in connection association with any hyperlink is prohibited. Permission to use the Playworks’ logos or links to Playworks sites must be requested through DigitalServices@playworks.org. We reserve the right to withdraw linking permission without notice.
12. Legal Compliance
Compliance with Law
You will comply with all applicable federal, state, and local laws in connection with your use of Digital Services.
Cooperation with Law Enforcement
Courts or law enforcement authorities may request or direct Playworks to disclose the identity of anyone making available any materials believed to violate applicable laws or this Agreement. Playworks, in its discretion, will respond to such requests.
Compliance with Digital Millennium Copyright Act
Playworks’ policy is to investigate any allegations of copyright infringement brought to our attention. Playworks will respond to notices of alleged copyright infringement that comply with applicable law and this section. In accordance with the U.S. Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), if you believe any content infringes your copyright, you may request removal of that content by submitting written notice, with your physical or electronic signature, to our Copyright Agent designated below that includes the following information (the “DMCA Notice”):
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works, a representative list of such works;
- Identification of the content you believe to be infringing in a sufficiently precise manner to allow us to locate that content;
- Information by which we can contact you (including your name, postal address, telephone number and e-mail address);
- A statement that you have a good faith belief that the use of the content is not authorized by the copyright owner, its agent or the law (e.g., is not a “fair use”);
- A statement that the information in the written notice is accurate; and
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
DMCA Notices may be sent to us at digitalservices@playworks.org. If you knowingly, materially misrepresent that any content is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under the DMCA.
13. Disclaimers
THE DIGITAL SERVICES AND ALL INFORMATION AND MATERIALS PROVIDED BY PLAYWORKS ARE PROVIDED TO YOU “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND (EITHER EXPRESS OR IMPLIED). PLAYWORKS MAKES NO WARRANTY OR REPRESENTATIONS OF ANY KIND WITH RESPECT TO THE DIGITAL SERVICES. YOU AGREE THAT TEMPORARY INTERRUPTIONS OF THE PROVISION OF THE DIGITAL SERVICES MAY OCCUR AND WE HAVE NO CONTROL OVER ANY THIRD PARTY NETWORKS IN CONNECTION WITH OUR SERVICES OR ANY DELAYS OR DISRUPTIONS OF NETWORK TRANSMISSIONS. ALSO, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PLAYWORKS SHALL NOT BE LIABLE IN ANY RESPECT FOR ANY DAMAGES WHATSOEVER ARISING FROM YOUR USE OF THE DIGITAL SERVICES, INCLUDING, WITHOUT LIMITATION, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, DAMAGES ARISING FROM BUSINESS INTERRUPTION, OR LIABILITY IN RELATION TO ERRORS OR OMISSIONS IN ANY PORTION OF THE DIGITAL SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY.
14. General Provisions
Entire Agreement
This Agreement, together with the Order Form, expresses the final, complete, and exclusive agreement between you and Playworks, and supersedes any and all prior or contemporaneous written and oral agreements, arrangements, negotiations, communications, course of dealing, or understanding between Playworks and you relating to its subject matter.
Amendment
This Agreement may be amended only as stated in and by a writing signed by both Playworks and you that recites that it is an amendment to this Agreement.
Severability
If any provision of this Agreement is held illegal, invalid, or unenforceable, all other provisions of this Agreement will nevertheless be effective, and the illegal, invalid, or unenforceable provision will be considered modified such that it is valid to the maximum extent permitted by law.
Waiver
Any waiver of the provisions of this Agreement must be in writing and signed by the party granting the waiver. Waiver of any breach or provision of this Agreement will not be considered a waiver of any later breach or of the right to enforce any provision of this Agreement.
Assignment
Neither you nor Playworks may assign its rights or delegate its duties under this Agreement to anyone else without the prior written consent of the other, except that each may assign all of its rights and obligations under this Agreement without the other’s consent in connection with a merger, acquisition, reorganization, sale or transfer of substantially all of its assets, or other operation of law.
Third Party Beneficiaries
Except as specifically provided in the section entitled “Indemnification”, this Agreement is for the exclusive benefit of you and Playworks, and not for the benefit of any third party, including, without limitation, any student, teacher, parent or guardian, employee, contractor, or vendor.
Force Majeure
Playworks will not be required to perform or be held liable for failure to perform if nonperformance is caused by power failures, nonperformance of internet or data communications facilities, third party mechanical or other equipment breakdowns, fiber optic cable cuts, interruption or failure of telecommunications or digital transmission links, labor strikes, work stoppages, war, hostilities, a national emergency, acts of God, epidemics, pandemics, quarantines, natural disasters, or any other causes beyond the control of Playworks.
Governing Law; Jurisdiction
This Agreement will be governed by California law. You and Playworks consent to the exclusive jurisdiction of the state and federal courts for Alameda County, California.