(a) “Account” refers to access-controlled data including billing information and personally identifiable information of a User; and data indicating Service plans, features, and/or content selected by the User through Provider’s customer portal at the time of enrollment,and as modified from time to time.
(b) “Authorized Representative” refers to an officer of the Provider, or the Provider’s duly authorized agent; and, the User’s attorney-in-fact or court-appointed guardian.
(c) “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
(d) “User Data” refers to data in electronic form input or collected through the Service by or from User.
(e) “Service” refers to Provider’s self-help Internet-based educational service including all downloadable materials, website tools and content, and social media features.
2.Service & Payment.
Provider agrees to provide the Service to User pursuant to this Agreement and its current policies and procedures as may be amended from time to time.At this time the Service is provided free of charge; however, Provider may require fees for the Service after providing User with notice and the option to purchase said services.
3.Service Level Agreement. In the event of any Service failure whatsoever including, without limitation, hardware or software malfunctions, service unavailability, data loss including User data loss, or User’s loss of access to the Service for any reason the Provider is not liable to User for any damages whatsoever including actual, consequential, indirect, incidental, special, or punitive of any kind regardless of the cause of such failure, including force majeure, and even if such failure is due to Provider’s negligence. In the event of a failure of Service, Provider will make reasonable efforts to resolve the failure, but makes no representation, promise, or warranty as to the speed with which a failure shall be resolved or the nature or extent of services that are restored, if any. Provider further makes no representation, promise, or warranty as to the percentage of system up-time that a User may expect. User has no right to demand or require restoration of service, return or restoration of User’s data, or any element of the Service provided prior to a failure of Service. The Service is provided as-is and without warranty of any kind.
4.Materials, Software, & IP.
(a) Materials. User recognizes and agrees that:
(i) the Materials are the property of Provider and are protected by copyright, trademark, and other intellectual property laws;
(ii) User does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use the Materials as necessary for use of the Service as contemplated under the terms of this Agreement;
(iii) Users are permitted to make copies of the Materials for Allowed Personal Use only, where Allowed Personal Use means that which is necessary for use of the Service as contemplated under the terms of this Agreement;
(iv) Users may not provide the Materials or copies thereof to any other person, natural or juristic, regardless of whether the other person is also a User of the Service, and may not knowingly allow or enable another to gain access to the Materials, or to the Service or any component or feature thereof;
(v)Users may not record and/or store streaming media provided through the Service even for personal use;
(vi) Users may not create derivative works based upon the Materials or any component or aspect thereof;
(vii) Users may not reproduce, deface, alter, or commercially use the Provider’s trademarks or confusingly similar renditions thereof; and
(viii) all rights held by the User in and to the Materials are extinguished upon termination of the User’s account regardless of the reason for termination, and all Materials and copies thereof must be destroyed upon termination, or at the sole option of the Provider the Materials may be returned to the Provider.
(b) Intellectual Property in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant User any intellectual property rights in or to the Service or any of its components or Materials. Nothing contained in this Agreement shall be construed to grant a license to use the Service, the Materials, or any part or component thereof in any way except that which is within the literal scope of allowed use as set forth herein.
(a) Authorized Use Policy (AUP). User agrees to comply with the AUP as set forth in Appendix A. In the event of User’s material breach of the AUP, including without limitation any copyright infringement, Provider may suspend or terminate User’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Provider take any action against User or any other customer for violating the AUP, but Provider is free to take any such action it sees fit.
6.Each Party’s Warranties.
(a) User’s Identity. User warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and
(ii) that it is an individual 18 years or older. Breach of this term is grounds for immediately terminating the User’s access to the Service without a refund.
(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
(c) Disclaimers. Except for the express warranties specified in this section six (6), THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND USER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Provider does not warrant that the Service will perform without error or material interruption.
7.Limitation of Liability. IN NO EVENT: (a) WILL PROVIDER BE LIABLE FOR HARM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT; AND (b) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7, Provider’s liability will be limited to the greatest extent permissible by law.
(a) Access, Use, & Legal Compulsion. Provider will make reasonable efforts to maintain User’s data in secret; however, no guaranty of secrecy is made. Provider may disclose User Data as required by applicable law or by proper legal or governmental authority. Provider will give User prompt notice of any such legal or governmental demand and reasonably cooperate with User in any effort to seek a protective order or otherwise to contest such required disclosure, at User’s expense.
(b) User’s Rights. User possesses and retains all right, title, and interest in and to User Data, and Provider’s use and possession thereof is solely as User’s agent.
(c) Retention & Deletion. Provider will retain all User Data until erased pursuant to the Data Policy set forth in Appendix C.
9.Term & Termination.
(a) Term. This Agreement will continue for the longer of one month following the Effective Date (a “Term”) or until the next regular monthly renewal date as may be determined by the Provider. Thereafter, this Agreement will renew for subsequent terms (“Terms”) of one month, unless either party notifies the other of its intent not to renew ten (10) or more days before the beginning of the next Term.
(b) Termination for Cause. The Provider may terminate this Agreement for material breach without notice, unless the User first cures such breach.
(c) Effects of Termination. The following provisions will survive termination of this Agreement: (i) Sections 4, 5(b), 6(c), and 7 of this Agreement; and (ii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
(a) Notices. Provider may send notices pursuant to this Agreement to User’s contact points listed in User’s Account, and such notices will be deemed received ten (10) days after they are sent. User may send notices pursuant to this Agreement to P.O. Box 1804, Chesterfield, VA 23832, and such notices will be deemed received ten (10) days after they are sent.
(c) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(f) Assignment & Successors. The User may not assign this Agreement or any of its rights or obligations here under for any reason.
(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Ohio, without reference to the principles of conflicts of law. The parties consent to the personal jurisdiction of the federal and state courts of the State of Ohio.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(i) Certain Notices. Provider hereby notifies User that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
(k) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
Appendix A. Authorized Use Policy
Effective Date: [December 01, 2015]