Instructure

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Instructure is a company I was a bit unfamiliar with before this project, but to their credit, I think the Terms of Use and Privacy Policy actually helped me understand their service better. Instructure limits its liability and provides disclaimers for content on their services, but it is important to remember that once someone creates an account and pays for access, they have pretty broad ability to add their own content to Instructure's software platform. This explains the protection they seek in the terms, as someone could easily make it look like something nefarious came from Instructure if they paid for initial access. Notably, the sharing agreement highlights that they do not have parent company at the moment, but that may change.

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Representations & Warranties

 

"YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE INSTRUCTURE PROPERTIES IS AT YOUR SOLE RISK, AND THE INSTRUCTURE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. INSTRUCTURE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INSTRUCTURE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE INSTRUCTURE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE INSTRUCTURE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE INSTRUCTURE PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE INSTRUCTURE PROPERTIES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE INSTRUCTURE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE INSTRUCTURE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. INSTRUCTURE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM INSTRUCTURE OR THROUGH THE INSTRUCTURE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN."

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Limitations on Liability

 

"10.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL INSTRUCTURE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTRUCTURE PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT INSTRUCTURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE INSTRUCTURE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE INSTRUCTURE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE INSTRUCTURE PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON INSTRUCTURE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE INSTRUCTURE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

10.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL INSTRUCTURE PARTIES BE LIABLE TO YOU FOR MORE THAN THE ANY AMOUNTS RECEIVED BY INSTRUCTURE AS A RESULT OF YOUR USE OF THE INSTRUCTURE PROPERTIES IN THE 12 MONTHS PRECEDING YOUR CLAIM. IF YOU HAVE NOT PAID INSTRUCTURE ANY AMOUNTS IN THE 12 MONTHS PRECEDING YOUR CLAIM, INSTRUCTURE’S SOLE AND EXCLUSIVE LIABILITY SHALL BE FIFTY DOLLARS ($50). 

10.3 USER CONTENT. INSTRUCTURE PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

10.4 NO LIABILITY FOR CONDUCT OF THIRD PARTIES OR OTHER USERS. YOU ACKNOWLEDGE AND AGREE THAT INSTRUCTURE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD INSTRUCTURE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE INSTRUCTURE PROPERTIES. YOU UNDERSTAND THAT INSTRUCTURE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE INSTRUCTURE PROPERTIES. 

10.5 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN INSTRUCTURE AND YOU."

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Indemnification

 

"You agree to indemnify, defend, and hold Instructure, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “INSTRUCTURE PARTIES”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Instructure Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. Instructure reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Instructure in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Instructure Properties."

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Sharing Agreements

 

We will share your personal information with third parties only in the ways that are described in this privacy policy or with your consent. 

• AFFILIATES. Although we currently do not have a parent company, any subsidiaries, joint ventures, or other companies under a common control (collectively, “AFFILIATES”), we may in the future. We may share some or all of your information with these Affiliates, in which case we will require our Affiliates to honor this Privacy Policy. 

• THIRD PARTY SERVICE PROVIDERS. We may share your personal information with third party service providers for the sole purpose of providing you with the Services that we offer you through our Site. For example, we may share data with service providers who host our websites or provide email services on our behalf.

• PARTNERS. We may also share your personal information with our Partners. Our Partners may use your personal information for their own direct marketing purposes. 

• OTHER DISCLOSURES. Instructure may disclose information about you if it believes such disclosure is necessary to (a) comply with laws or to respond to lawful requests and legal process; or (b) protect or defend the rights, safety, or property of Instructure, users of the Services, or any person including to enforce our agreements, policies, and terms of use or (c) in an emergency to protect the personal safety of any person. 

• We may also share information about you in connection with or during negotiation of any merger, financing, acquisition, bankruptcy, dissolution, transaction or proceeding involving sale, transfer, divestiture or disclosure of all or a portion of our business or assets to another company. In the event that information is shared in this manner, notice will be posted on our Site.

• We may also share de-identified and/or aggregated data with others for their own uses.

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