1.1 Access Grant. Subject to these Terms, Mainstay hereby grants to You a non-exclusive, non-sublicensable, non-transferable license to Use the Services for Your personal, non-commercial use.
1.2 Restrictions. You agree that You will not, nor will You cause or permit any other party to, (a) access or use the Services, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services; (c) sublicense, lease, rent, loan, distribute, transfer or otherwise allow the use of the Services for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) create derivative works or competitive products or services based on the Services; (f) remove or obscure any proprietary notices or labels of Mainstay; or (g) access or use the Services in violation of applicable law.
1.3 License; Ownership. You hereby grant Mainstay a non-exclusive, worldwide, royalty-free, non-sublicensable (except as necessary to provide the Services) and non-transferable (except in accordance with Section 13 of these Terms) license to (a) copy, display, distribute, modify and otherwise use the User Content (i) as required to provide the Services and (ii) internally to develop and improve Mainstay products and services and (b) to create De-Identified Data. Mainstay shall own, and can fully exploit any, De-Identified Data for any lawful business purpose during the term of this Agreement and thereafter; provided, that, Mainstay will not attempt to re-identify any De-Identified Data and will not transfer any De-Identified Data to any third party unless such third party agrees not to re-identify the De-Identified Data. As between the parties, You own all right, title and interest in the User Content.
1.4 Ownership. Excluding User Content that You may provide to Mainstay, Mainstay owns all right, title and interest (including, but not limited to, all copyright, patent, trademark and trade secret rights) in and to the Services, including but not limited to the Knowledge Base. Except for the limited license granted in Section 1.1, Mainstay does not transfer to User any rights, title or interest in and to any intellectual property rights and Mainstay reserves all rights not expressly granted in these Terms.
1.5 User Warranty. You represent and warrant that (a) the User Content does not and shall not (i) infringe any copyright, trademark, or patent right; (ii) misappropriate any trade secret; (iii) be deceptive, libelous, obscene, pornographic, harassing, abusive, threatening, harmful, false, intentionally misleading or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Mainstay’s system or data; or (v) otherwise violate any privacy or other right of any third party.
1.6 Enforcement. Mainstay reserves the right (but has no obligation) to review any User Content, and to investigate and/or take appropriate action against You in Mainstay’s sole discretion if You violate these Terms. Such action may include removing or modifying User Content, terminating or suspending Your Use of the Services and/or reporting You to law enforcement authorities.
1.7 Responsibility for Access, Content and Security. Mainstay is not obligated to back up any User Content; You are solely responsible for creating backup copies of any User Content at Your sole cost and expense. You shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content.
1.9 Feedback. If You provide us with any feedback or suggestions regarding the Services (“Feedback”), You hereby assign to Mainstay all rights in such Feedback and agree that Mainstay shall have the right to use and fully exploit such Feedback and related information in any manner Mainstay deems appropriate. Mainstay will treat any Feedback You provide to Mainstay as non-confidential and non-proprietary. You agree that You will not submit to Mainstay any information or ideas that You consider to be confidential or proprietary.
1.10 No Use by Children Under 13. The Children’s Online Privacy Protection Act (“COPPA”) requires that all online service providers, including Mainstay, obtain parental consent before knowingly collecting personally identifiable information from children under the age of 13. Mainstay does not knowingly collect or solicit any personally identifiable information from children under the age of 13. Children under the age of 13 are prohibited from Using the Services unless they are doing so with parental consent or with the consent of a teacher, school or district who is providing such consent in compliance with COPPA. If Mainstay learns that Mainstay has collected information from a person under the age of 13 that does not comply with COPPA, Mainstay will delete that information in a reasonably prudent amount of time. If You believe that a child under the age of 13 has provided personally identifiable information to Mainstay, please contact Mainstay at [email protected]
3.1 Termination. Subject to termination pursuant to this Section, these Terms will remain in full force and effect while You Use the Services. Mainstay may suspend or terminate User’s rights to Use the Services at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. You may terminate these Terms by sending Mainstay instruction to Mainstay that Mainstay permanently stop communicating with You. Upon termination, Your rights and license to Use the Services under these Terms will terminate immediately. You understand and agree that any termination of Your Use may involve deletion of Your User Content from Mainstay’s databases. Mainstay will not have any liability whatsoever to You for any termination of Your Use or deletion of Your User Content. Even after termination of Your Use of the Services, the following Sections will survive and remain in effect: Section 1.4 (Ownership); Section 1.9 (Feedback); Section 3.1 (Termination); Section 3.2 (Confidential Student Information Return and Destruction); Section 4 (Disclaimer); Section 5 (Limitation of Liability); Section 9 (Entire Terms); Section 10 (Severability); Section 11 (Dispute Resolution by Binding Arbitration); Section 12 (Governing Law); Section 13 (Assignment); Section 15 (Definitions).
3.2 Confidential Student Information Return and Destruction. Upon termination or expiration of these Terms or thereafter, at Your written request, Mainstay shall, in a reasonable period of time, destroy Confidential Student Information about You that Mainstay knows it possesses to the extent that destruction is reasonably practicable. Mainstay shall not be required to return or destroy Directory Information it has received or obtained, except where required by applicable law. Mainstay shall not be required to return or destroy De-Identified Data. You hereby acknowledge and agree that as Mainstay builds its Knowledge Base, certain pieces of information or data, such as phraseology, sentence fragments, questions, and responses may remain in archive or other files following Mainstay’s commercially reasonable attempt to return or destroy Confidential Student Information, however, such residual information or data shall not include personally identifiable information.
4 DISCLAIMER. THE SERVICES ARE PROVIDED “AS IS,” AND MAINSTAY MAKES NO (AND HEREBY EXPRESSLY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MAINSTAY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL MAINSTAY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ITS PERFORMANCE HEREUNDER AND IN NO EVENT SHALL MAINSTAY’S LIABILITY TO THE YOU AS A RESULT OF ANY CLAIM ARISING UNDER THESE TERMS, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED FIFTY DOLLARS ($50.00). NOTWITHSTANDING ANYTHING ELSE, IN NO CASE SHALL MAINSTAY HAVE ANY LIABILITY OR OBLIGATIONS RELATED TO USER CONTENT, POSTS OR OTHER USE OF THE SERVICES.
IF YOU ARE FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
6 Changes to Terms. These Terms are subject to occasional revision, and if Mainstay makes any substantial changes, Mainstay may notify You by sending You an email or text message to the last address that You have provided to Mainstay (if any) or by prominently posting notice of the changes to mainstay.com (“Site”). In the event that the last email address or phone number is not valid or for any reason is not capable of delivering to You the notice described in this Section, Mainstay’s dispatch of the email or text message containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email or text message notice to You (if applicable) or thirty (30) calendar days following Mainstay’s posting of notice of the changes on the Site. Continued Use of the Services following notice of such changes shall indicate Your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.
7. Export. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Mainstay, or any products utilizing such data, in violation of the United States export laws or regulations.
8. Electronic Communications. The parties agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mainstay provides to the other party electronically satisfies any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect Your non-waivable rights.
9. Entire Terms. These Terms constitute the entire agreement between You and Mainstay regarding the Use of the Services. Mainstay’s failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. Your relationship to Mainstay is that of an independent contractor, and neither party is an agent or partner of the other.
10 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11. Dispute Resolution by Binding Arbitration. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND MAINSTAY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND MAINSTAY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Mainstay is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [email protected] If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Mainstay should be sent to 38 Chauncy Street, 11th Floor, Boston, MA 02109 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Mainstay and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Mainstay may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Mainstay or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Mainstay is entitled.
d. Arbitration Procedures
Unless Mainstay and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Mainstay agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Mainstay will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Mainstay will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Mainstay will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
h. Future Changes to Arbitration Agreement
12 Governing Law. These Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State Delaware.
13 Assignment. These Terms, and Your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by You without Mainstay’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Mainstay may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
14 Mainstay Contact Information: Mainstay may be contacted at the following address: Mainstay, Inc., 38 Chauncy St, 11th Floor, Boston, MA 02111, Email: [email protected]
5.1 “Confidential Student Information” means any information about You, except for Directory Information, including without may include financial information (regarding FAFSA applications) and other information that by its nature should be considered confidential to You.
5.2 De-Identified Data” means any data, including data derived from User Content, Directory Information or Confidential Student Information, that has had all direct and indirect personal identifiers removed. This includes the removal of any names, identification numbers, and dates of birth, address, email address, and telephone number. De-Identified Data does not include any data that alone or in combination would reasonably allow a person or entity to identify a student with reasonable certainty.
5.3 Directory Information. “Directory Information” includes, but is not limited to, student name, address, telephone number, email address, photograph, date and place of birth, enrollment status e.g., undergraduate or graduate, full-time or part-time), major field of study, dates of attendance (including graduation date), degrees and awards received, participation in officially recognized activities and sports, and the most recent educational agency or institution attended.
5.4 “Knowledge Base” means Mainstay’s proprietary, algorithm-based data structure that underlies the Services.
5.5 “User Content” means any content and information submitted via or in connection with the Service by You. For clarity, User Content does not include the De-Identified Data or any portion of the Knowledge Base.
Last updated: April 15, 2020