Capitalized terms not defined in context have their respective meanings set forth in Section 17.
1. ACCESS AND OWNERSHIP.
1.1 Registration; User Names and Passwords. You may need to register to use all or part of the Services. We may reject, or require that You change, any user name, password or other information that You provide to us in registering. Your user name, password, and/or account are for your personal use only and should be kept confidential. You, and not Making Waves Foundation, are responsible for any use or misuse of your user name, password, and/or account, and You must promptly notify us of any confidentiality breach or unauthorized user of your user name, password, or account.
1.2 Access Grant. Subject to Your compliance with these Terms, and only for as long as You are permitted by Making Waves Foundation to use the Services, Making Waves Foundation hereby grants to You a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use the Services on a device that You own or control, only for Your personal, non-commercial use. If You do not comply with these Terms, You must immediately stop using the Services.
1.3 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) reproduce, modify, adapt, alter or translate the Services; (c) sublicense, lease, rent, loan, sell, distribute, timeshare, 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 Making Waves Foundation; (g) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (h) disrupt the operation of the Services or the servers or networks used to make the Services available; or (i) Use the Services for any purpose that is commercial, or fraudulent or otherwise unlawful.
1.4 License to User Content. You hereby grant Making Waves Foundation a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable, sublicensable and transferable license, without additional consideration to You or any third party, to (a) reproduce, display, distribute, modify, perform and display (publicly or otherwise), create derivative works of, adapt and otherwise use, analyze and exploit the User Content (i) as required to provide the Services and (ii) internally to develop and improve Making Waves Foundation’s products and services; and (b) to create De-Identified Data. Making Waves Foundation will own, and may fully exploit any, De-Identified Data for any lawful business purpose during the term of these Terms and thereafter; provided, that, Making Waves Foundation 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. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law.
1.5 Ownership. Excluding User Content that You may provide to Making Waves Foundation, Making Waves Foundation 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 1.2, Making Waves Foundation does not transfer to User any rights, title or interest in and to any intellectual property rights and Making Waves Foundation reserves all rights not expressly granted in these Terms.
1.6 User Warranty. You represent and warrant that (a) the User Content and the use of User Content does not and will not (i) infringe any copyright, trademark, or patent right; (ii) misappropriate any trade secret or otherwise violate the rights of any third party; (iii) contain deceptive, libelous, obscene, pornographic, harassing, abusive, threatening, harmful, false, intentionally misleading, defamatory, obscene, indecent, pornographic or otherwise objectionable material; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage or hijack the operation of, or to monitor the use of, any Making Waves Foundation’s system, software, equipment or data; or (v) otherwise violate any privacy or other right of any third party; (b) You have all rights necessary to grant the license granted in Section 1.4; and (c) the User Content, and your provision thereof, are complete and accurate, and are not fraudulent or tortious or otherwise in violation of any applicable law.
1.7 Enforcement. Making Waves Foundation reserves the right (but has no obligation) to review, evaluate, alter or remove any User Content, and to investigate and/or take appropriate action against You in Making Waves Foundation’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.
1.8 Responsibility for Access, Content and Security. Making Waves Foundation 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 will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content.
1.9 SMS Messages.
a. The program name for the SMS Service is Making Waves Education Foundation.
b. By using the SMS Service, you agree to receive informational alerts about college and career planning from Making Waves Education Foundation by text messaging at the phone number you provide.
c. You can cancel the SMS Service at any time. Just text “STOP” to the short code. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just text “START” and we will start sending SMS messages to you again.
d. If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at firstname.lastname@example.org.
e. Carriers are not liable for delayed or undelivered messages.
f. As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency varies. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
1.10 Feedback. If You provide us with any feedback or suggestions regarding the Services (“Feedback”), You hereby assign to Making Waves Foundation all right, title and interest in such Feedback and agree that Making Waves Foundation will have the right to use and fully exploit such Feedback and related information in any manner Making Waves Foundation deems appropriate. You hereby acknowledge and agree that such Feedback is not confidential and non-proprietary, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Making Waves Foundation under any fiduciary or other obligation. You agree that You will not submit to Making Waves Foundation any information or ideas that You consider to be confidential or proprietary.
1.11 No Use by Children Under 13. Making Waves Foundation 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 applicable laws and regulations. If Making Waves Foundation learns that Making Waves Foundation has collected information from a person under the age of 13 that does not comply with applicable laws and regulations, Making Waves Foundation 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 Making Waves Foundation, please contact Making Waves Foundation at email@example.com.
1.12 Jurisdictional Issues. The Services are controlled or operated (or both) from the United States, and is not intended to subject Making Waves Foundation to any non-U.S. jurisdiction or law. The Services may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Services’ availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
1.13 Third Party Materials. The Services may make available access to information, products, services and other materials made available by third parties, including User Content (“Third Party Materials”), including via links. By accessing any Third Party Materials, You are directing us to access, route and transmit the Third Party Materials to You. We do not control and are not responsible for any Third Party Materials, including the accuracy, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party materials may, among other things, be inaccurate or deceptive. Nothing in these Terms will be considered a representation or warranty by Making Waves Foundation with respect to any Third Party materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials through the Services at any time. The availability of any Third Party Materials through the Services does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between You and any such provider. YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF ANY THIRD PARTY PROVIDERS).
3. TERM AND TERMINATION.
These Terms will remain in full force and effect while You Use the Services and continue until terminated in accordance with this Section. Making Waves Foundation may suspend or terminate User’s rights to use the Services at any time without prior notice and 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 Making Waves Foundation instruction to 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 such termination may involve deactivation or deletion of your user name, password and account, and deletion of Your User Content from Making Waves Foundation’s databases, without any obligation on our part to provide further access to those materials. Making Waves Foundation will not have any liability whatsoever to You for any termination of these Terms or deletion of Your User Content. Even after termination of of these Terms, the following Sections will survive and remain in effect: Section 1.4 (License to User Content); Section 1.5 (Ownership); Section 1.6 (User Warranty); Section 1.10 (Feedback); Section 1.12 (Jurisdictional Issues); Section 1.13 (Third Party Materials); Section 2 (Privacy); Section 3 (Termination); Section 4 (Disclaimer); Section 5 (Limitation of Liability); Section 6 (Indemnity); Section 8 (Export); Section 10 (Entire Terms); Section 11 (Severability); Section 12 (Dispute Resolution by Binding Arbitration); Section 13 (Governing Law); Section 14 (Assignment); Section 17 (Definitions).
4. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES [AND ANY THIRD PARTY MATERIALS] ARE PROVIDED ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, AND MAKING WAVES FOUNDATION MAKES NO (AND HEREBY EXPRESSLY DISCLAIMS ALL) REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MAKING WAVES FOUNDATION DOES NOT WARRANT THAT ANY ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
5. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, (A) IN NO EVENT WILL MAKING WAVES FOUNDATION BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY INFORMATION) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ITS PERFORMANCE HEREUNDER, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, MAKING WAVES FOUNDATION WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES [OR FROM ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH]; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES [OR ANY THIRD PARTY MATERIALS] IS TO STOP USING THE SERVICES;AND (D) IN NO EVENT WILL MAKING WAVES FOUNDATION’S LIABILITY TO 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). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF MAKING WAVES FOUNDATION, AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO CASE WILL MAKING WAVES FOUNDATION HAVE ANY LIABILITY OR OBLIGATIONS RELATED TO USER CONTENT, POSTS OR OTHER USE OF THE SERVICES.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
6. INDEMNITY. To the fullest extent permitted under applicable law, You agree to defend, indemnify and hold harmless Making Waves Foundation and their respective successors and assigns from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) Your Use of, or activities in connection with, the Services (including User Content); and (b) any violation or alleged violation of these Terms by You.
7. CHANGES TO TERMS. Making Waves Foundation may change these Terms from time to time, and if Making Waves Foundation makes any substantial changes, Making Waves Foundation may notify You by sending You an email or text message to the last address that You have provided to Making Waves Foundation (if any) or by prominently posting notice of the changes to making-waves.org (“Site”) or otherwise providing notice, including through the Services (any such notice, a “Change Notice”). 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, Making Waves Foundation’s dispatch of the email or text message containing such Change Notice will nonetheless constitute effective notice of the changes described in the Change Notice. Any changes to these Terms will be effective thirty (30) calendar days following the first such Change Notice. Continued Use of the Services following a Change Notice will indicate Your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes. Making Waves Foundation may, at any time, modify or discontinue all or part of the Services; or charge, change or waive any fees required to use the Services.
8. 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 are responsible for complying with U.S. export controls and for any violation of these controls, including any U.S. embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any U.S. government list of restricted end users. You hereby agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Making Waves Foundation, or any products utilizing such data, in violation of the United States export laws or regulations.
9. ELECTRONIC COMMUNICATIONS. The parties agree that all terms and conditions, agreements, notices, disclosures, and other communications that Making Waves Foundation 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.
10. ENTIRE TERMS. These Terms constitute the entire agreement between You and Making Waves Foundation regarding the Use of the Services, and supersedes any earlier or contemporaneous agreements or understandings between you and Making Waves Foundation relating to the Use of the Services. Making Waves Foundation’s failure to exercise or enforce any right or provision of these Terms will 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 Making Waves Foundation is that of an independent contractor, and neither party is an agent or partner of the other.
11. 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.
12. DISPUTE RESOLUTION BY BINDING ARBITRATION. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
12.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND MAKING WAVES FOUNDATION 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 MAKING WAVES FOUNDATION 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.
12.3. Pre-Arbitration Dispute Resolution. Making Waves Foundation 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 firstname.lastname@example.org. 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 Making Waves Foundation should be sent to 3045 Research Drive, Richmond, CA 94806 (“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 Making Waves Foundation and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Making Waves Foundation may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Making Waves Foundation or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Making Waves Foundation is entitled.
12.4. Confidentiality. 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.
14. ASSIGNMENT. These Terms, and Your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by You without Making Waves Foundation’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Making Waves Foundation may freely assign these Terms. These Terms will be binding upon all permitted successors and assigns.
15. COPYRIGHT INFRINGEMENT CLAIMS. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If You believe in good faith that materials available through the Services infringe Your copyright, You (or Your agent) may send to Making Waves Foundation a written notice by mail, e-mail or fax, requesting that Making Waves Foundation remove such material or block access to it. If You believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Making Waves Foundation a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Jon Siapno as follows: By mail to Jon Siapno (3045 Research Drive, Richmond, CA 94806); or by e-mail to email@example.com. Jon Siapno’s phone number is 510-275-7330.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
16. MAKING WAVES FOUNDATION CONTACT INFORMATION. Making Waves Foundation may be contacted at the following address: Making Waves Foundation (3045 Research Drive, Richmond, CA 94806) or contact us via email at firstname.lastname@example.org.
17. CERTAIN DEFINITIONS.
17.1 “Confidential Student Information” means any information about You, except for Directory Information, and may include financial information (regarding FAFSA applications) and other information that by its nature should be considered confidential to You.
17.2 “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.
17.3 “Directory Information” means information for use in our directory, including Your name, address, telephone listing, date and place of birth, participation in officially recognized activities and sports, dates of attendance, and details about high school students in Your household, including the foregoing listed categories of information.
17.4 “Knowledge Base” means Making Waves Foundation’s proprietary, algorithm-based data structure that underlies the Services.
17.5 “User Content” means any content and information submitted via or in connection with the Services by You. For clarity, User Content does not include the De-Identified Data or any portion of the Knowledge Base.
Last updated: September 14, 2023.