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Terms of Service

ESME LEARNING TERMS OF SERVICE

Hello and welcome to Esme Learning Solutions LLC (“Esme Learning”)! We partner with leading universities to offer primarily noncredit web-based professional development courses on subjects such as data privacy and cyber futures, while bringing advanced tools and technologies to enhance the learning experience. Before we get started, select this link [Definitions] to review the terms used in these Terms.

1. No Guaranty of Course Credit. YOU UNDERSTAND AND AGREE THAT, EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS OR ELSEWHERE ON OUR PLATFORM, INCLUDING IN A COURSE PROSPECTUS, WE MAKE NO ASSURANCE AND DO NOT GUARANTEE THAT YOU WILL RECEIVE ANY CREDIT FOR YOUR PARTICIPATION IN ANY COURSE FROM ANY SCHOOL. You understand and agree that, except as may be expressly set forth in these Terms or elsewhere on our Platform, we do not and will not issue Credit to you for your participation in any Course on behalf of any School. In general, Esme Learning offers noncredit Courses.

2. Acceptance of Terms.

(a) PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND ESME LEARNING ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT, AND LIMIT CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN THE ARBITRATION SECTION (SEE SECTION 12 OF THESE TERMS).

(b) IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT USE OUR SERVICES, INCLUDING OUR WEBSITE. These terms may have changed since your last visit. If you are viewing this on your mobile device, you can also view these Terms via a web browser at [Terms of Service].

(c) BY USING OUR SERVICES, INCLUDING OUR WEBSITE, YOU REPRESENT TO US THAT YOU CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. Our Services may be used in various countries. However, if you are using our Services outside of the United States of America or Europe, you are responsible for ensuring that your use of our Services complies with applicable law and we make no warranty that any use of our Services is permitted in your country.

(d) Esme Learning reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on our Website. Revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. Your continued use of our Services after a revised version of these Terms has been posted on our Website constitutes your binding acceptance of the revised Terms.

3. Login Credentials; Communications. For information regarding Login Credentials, Account Information and our communications with you, please click on this link [Login Credentials; Communications].

4. Our Services; Fees. Our Services offer a platform for Schools and Faculty Members to connect with Students for purposes of providing web-based professional development courses on subjects such as data privacy and cyber futures. Faculty Members and Students may communicate with each other using our Services. For information describing our Services and fees, please click on this link [Our Services; Fees].

5. Scope of Service; Modifying and Terminating Service. You understand that we may change, alter, suspend or discontinue our Services in whole or in part at any time. You may terminate these Terms as well. For more information regarding the scope of our Services and termination of these Terms by you, please click on this link [Scope of Service; Modifying and Terminating Service].

6. Licenses, Content and Individual Data. Generally speaking, we own or license Content available through our Platform. For more information regarding intellectual property rights and Content, please click on this link [Licenses, Content and Individual Data]. If you believe that any of our content infringes your intellectual property rights, our DMCA policy is also available at the same link [Licenses, Content and Individual Data].

7. Your Use; Prohibited Conduct. As a condition of your use of our Services, you will not use our Services for any purpose that is unlawful or prohibited by these Terms. We reserve the right, without prior notice and in our sole discretion, to terminate your access to our Services if we decide that your use violates these Terms, including for the reasons listed at this link [Your Use; Prohibited Conduct], or for any other reason.

8. Third Party Sites; Third Party Service. Our Services may contain links to certain third party sites or include features or functionalities that interoperate with services operated by third parties. Select this link [Third Party Services] to review our Terms governing any third party services, including with respect to our licensors and suppliers.

9. Limitation of Liability; Disclaimers; Miscellaneous. Generally speaking, we do not make any warranties or assume liabilities in relation to our Services, including any liability resulting from any communication between or among you and any other User(s). For more information regarding our disclaimers of warranties and limitations of liability, as well as your indemnification responsibilities and certain other legal provisions, please click on this link [Limitation of Liability; Disclaimers; Miscellaneous].

10. Jurisdictional Issues. We make no representation that information on our Services is appropriate or available for use outside of the United States of America or Europe. Those who choose to access our Services from outside such countries do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws. By using our Services, you consent to having your Login Credentials and any personal information that you provide as part of the account creation process transferred to and processed in the United States of America subject to the restrictions on such data as provided in our Privacy Policy.

11. Governing Law; Dispute Resolutions. These Terms, and any dispute between you and us, shall be governed by the laws of the Commonwealth of Massachusetts, USA without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that Section 12 is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Arbitration Procedures or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the Commonwealth of Massachusetts, USA except that you or we are permitted (1) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure and if such court is located in the United States of America; (2) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (3) to seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.

12. Agreement to Arbitrate; Waiver of Class Action. You agree that all disputes between you and us arising out of or relating to these Terms, our Services and/or our Privacy Policy shall be finally resolved by arbitration, unless you opt out pursuant to the opt out procedures set forth in these Terms at this link [Agreement to Arbitrate; Waiver of Class Action

13. Modules; References. These Terms incorporate by reference each of the pages that are linked to these Terms, which we refer to herein as a “module”. Each module sets forth further provisions that are part of these Terms, and we encourage you to review those additional provisions. In some modules, we have included Section headings or Section cross-references, to make it easier to refer to a particular Section of another module. For example, in the module named “Login Credentials; Communications”, we have referenced Section 4(a), which is part of the module regarding “Our Services; Fees”.

14. For Additional Information. If you have any questions about these Terms, please contact us at customerservice@esmelearning.com.

Last Updated: May 20, 2020

Definitions.

(a) “Account” means an account created on the Esme Learning Platform.

(b) “Content” means any text content, notification, email, video, image or audio, or any other content or any combination thereof, in each case, that we make publicly available or which we permit you to access, whether created by us, you or a third party.

(c) “Course” means a series of educational sessions made available through the Esme Learning Platform for student participation.

(d) “Course Content” means the Content taught, shared or otherwise presented by a School, Faculty Member or other third party through the carrying out of any Course.

(e) “Course Prospectus” means any document made available on the Esme Learning Website, Sales Team, or Platform that provides a description of a given Course, which may include Course Content.

(f) “Credit” means any credit issued by a School providing weight to the value, level or time requirements of an academic course taken at a School.

(g) “Esme Learning”, “we”, “us” or “our” means Esme Learning, LLC, a Delaware limited liability company.

(h) “Esme Learning Platform” or “Platform” means our Website and related applications, including without limitation any mobile application that we may from time to time make available.

(i) “Esme Learning Messenger” means the communication system available through our Platform, including without limitation such messaging, video-conferencing, file-sharing or other applications as we may from time to time make available, which may be third-party applications, that allows Users to communicate with one another and certain third parties who are not Users.

(j) “Faculty Member” means a User, such as a teacher, administrator or other individual, that teaches or administers a Course on behalf of a School, or is using the Esme Learning Platform with the intent of teaching or administering a Course on behalf of a School.

(k) “Individual Data” means any data that relates to any User’s use of our Services.

(l) “School” means a User, such as a university or other academic organization, that creates, monitors or otherwise provides a Course for student registration or participation on the Esme Learning Platform.

(m) “Services” means any software or services we make available to you on the Esme Learning Platform, as well as any offline services we may provide to you, including without limitation making available any Course.

(n) “Student” means a User, such as a college student or other individual, that has Registered for participation in a Course, or is using the Esme Learning Platform with the intent to Register for participation in a Course.

(o) “Terms” mean these Terms of Service, which are a legally binding agreement that governs your access to our Services.

(p) “User” means a user of our Services, whether a Student, Faculty Member or otherwise.

(q) “User Content” means any Content that any User provides to be made available through the Esme Learning Platform, including without limitation any Account Information or Content submitted through Esme Learning Messenger.

(r) “Website” means each of https://esmelearning.com/.

(s) “you” or “your” means you.

Section 3. Login Credentials; Communications.

(a) Login Credentials. In order to use some of our Services, you may be required to register by providing certain information. We may ask you to complete a registration form and create a user name and password, or we may permit you to login through a third party application (your user name, password for us or for any third party application, “Login Credentials”). Upon registration, we may generate a unique user ID (your “User ID”) associated with your Account. You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your Account (including, without limitation, financial obligations). You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials.

(b) Account Information. During your registration, you shall give truthful information about you (such as name, email address, physical address, phone number and payment account information) (collectively, together with the additional information referenced in Section 4(a) (Student Information and Registration), “Account Information”). You are responsible for keeping your Account Information up to date and ensuring that it is accurate. We may contact you to verify your Account Information. We may require you to provide, for the sole purpose of verifying your Account Information, a copy of your driver’s license, passport, social security card or such other form of identification as we may from time to time require. We may ask you for additional information, for example for the purpose of fraud prevention, and we may suspend you from our Services or terminate these Terms if you do not provide such information within a reasonable period. You represent, warrant and covenant to us that all Account Information is and shall remain accurate and up to date.

(c) Acknowledgement for You to Receive Communications. You hereby agree: (i) to receive communications, including emails, text messages, push notifications, mail and telephone calls, that are related to our Services; that any communications from us may also include marketing materials from us or from third parties; and that any notices, agreements, disclosures or other communications that we send to you electronically are deemed to satisfy any legal communication requirements. You may opt out from receiving our communications by emailing customerservice@esmelearning.com or selecting to unsubscribe as may be provided in the applicable correspondence. In addition, if you create an Account, we may allow you to opt in to receive certain communications regarding certain Account activity (any such settings, your “Notification Settings”). You may change your Notification Settings through your Account at any time.

Section 4. Our Services; Fees.

(a) Student Information and Registration. To make use of our Services, you will be required to create an Account and provide certain information, as described on this page [Our Services; Fees]. As a Student, we may ask for certain additional information, including your name, job title, company name, email address, city, state or province and country (such additional information to be considered part of Account Information).

(b) Course Information. We may from time to time make certain information about Courses available on our Platform. We may provide information related to any such Course in a Course Prospectus, which may include information regarding Course Content, the School(s) offering such Course, the duration of such Course, any Credit that may be awarded upon the successful completion of such Course, any grading structure applicable to such Course, and any application process, eligibility requirements or other Registration constraints applicable to such Course (any such information, “Course Information”). You understand and agree that all Course Information available on our Platform, whether or not contained in a Course Prospectus, has been provided by the School(s) offering such Course, and we are not responsible for and make no representation regarding the accuracy or completeness of any Course Information.

(c) Course Registration. Subject to this Section 4(c) (Course Registration), you may use our Services to register for participation in any Course then available to you on our Platform (such process, “Registration”).

i. Registration Process. In order to participate in a Course, you will be required to Register for such Course by following the instructions set forth on our Platform, which may be found in the Course Prospectus of such Course. You may be required to apply for such Course by providing certain information about yourself, including your resume, transcript or such other information as may be requested by the School(s) offering such Course (any such information collectively, your “Application”). You understand that we may share your Account Information and Application with certain School(s) and other third parties for purposes of determining your eligibility to participate in a Course. We agree to notify you of your admission decision, as applicable, using the contact details you provide to us. You agree to carefully review the Course Prospectus of a Course prior to Registering for such Course.

ii. Registration Restrictions. We do not guarantee that you will be eligible for or be selected to participate in any Course on our Platform. You understand that your participation may be subject to such application process, space constraints or other restrictions as may be imposed from time to time by the School(s) offering such Course or by us. While we endeavor to disclose any such restrictions to you on our Platform, you understand that your ability to participate in any Course is ultimately in the discretion of such School(s). Course
participation is open to individuals and organizations from non-embargoed countries. We are not permitted to allow course participation to Individuals from embargoed countries as designated by U.S. sanctions (including Crimea, Cuba, Iran, North Korea, Sudan, and Syria) or blocked persons as designated by the University of Oxford. As per Section 5(c) we may terminate your participation at our discretion.

iii. Course Content. By Registering for a Course, you hereby acknowledge and agree that Esme Learning merely provides a platform to host Courses and to connect Schools and Faculty Members with Students, but does not create Course Content. Under no circumstances will we be liable for any claim that arises in connection with any Course Content.

iv. Fees. By Registering for a Course (your “Registered Course”), you agree to our Fee Schedule, incorporated herein by reference and available in the Course Prospectus of such Course. The fees payable upon Registration are referred to herein as your “Tuition”.

1. Payment Deadlines. We may allow you to pay your Tuition in one upfront payment, and may, from time to time, allow you to pay your Tuition in one or more installments, in each case subject to the deadlines and other terms specified in the Course Prospectus of your Registered Course. Unless otherwise specified, your Tuition payment (or the first installment of your Tuition payment, as the case may be) shall be due and payable on the first day of your Registered Course.

2. Billing. We may use a third party payment service to bill you through an online account for your Tuition and any other fees, as applicable, in lieu of directly processing your credit card information. By submitting your payment account information, you grant us the right to store and process your information with the third party payment service, which may change from time to time; you agree that we will not be responsible for any failure of the third party to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to these Terms. You agree that we may change the third party payment service and move your information to other service providers that encrypt your information using transport layer security (TLS) or comparable security technology.

3. Refunds or Credits. Other than as may be expressly set forth on our Platform as updated from time to time, we have no obligation to provide refunds or credits, but may grant them in certain circumstances, as a result of specific refund guarantee promotions, or to correct errors made by us, in each case, in our sole discretion.

(d) Course Participation. Subject to this Section 4(d) (Course Participation), you may use our Services to participate in any Course in which you have successfully Registered pursuant to Section 4(c) (Course Registration) of these Terms.

i. General; Consent to Use of Technology. You acknowledge and agree that Courses may require the use of certain audio and video-conferencing capabilities, individual and group activities, discussion forums and written reflection, all of which may require the use of certain technologies approved by us as will be described on our Platform or in the applicable Course Prospectus of your Registered Course. You will be solely responsible for procuring any hardware, software or other materials that are required or recommended for your participation in any Course. We may from time to time use a third party platform to host certain Courses or any portion thereof, in which event you agree to be bound by the terms, conditions and privacy policies of such third party platform in addition to these Terms.

ii. Communications; Esme Learning Messenger. Our Services may allow you to upload or download certain Content from such devices and applications as we may from time to time make available for purposes of Course participation. Our Services may also allow you to communicate with certain Faculty Members and fellow Students using Esme Learning Messenger. You understand that we are not responsible for any such Content, including without limitation the content of your communications through Esme Learning Messenger or any other messaging, audio or video-conferencing or file-sharing tools that we may from time to time make available, including without limitation the Riff Platform and Appsembler (our learning management system). However, if you would like to report a concern about a communication, you may contact us at privacy@esmelearning.com

iii. Your Intellectual Property. Our Services and Courses may enable you to share your own Content, including assignments, with Esme Learning and certain Schools, Faculty Members and fellow Students. Except as otherwise provided in these Terms, you retain all intellectual property rights in, and are responsible for, the content that you share; however, you agree that we and the School(s) collaborating on your Registered Course shall be entitled to use, in our sole discretion, all content shared by you on our Platform for internal research and development, Course improvement, improvement of our Platform or any non-commercial purpose. In relation to specific Courses, a policy statement on intellectual property sharing may be included in the Course Prospectus for further guidance to you in the sharing of your ideas and assignments. It is your responsibility to ensure the proper protection of your intellectual property: if your intellectual property will be best protected by way of trade secret, or you have not filed for protection of your protectable intellectual property, then non-disclosure may be an essential protection. We cannot, and do not, guarantee that any intellectual property shared on our Platform or otherwise through Course participation will not be used by other Students. You should not disclose on our Platform, including without limitation through Esme Learning Messenger, any intellectual property that is not yours, whether it belongs to your employer or any other third party.

iv. Jointly-Developed Intellectual Property. You may from time to time through your participation in a Course author, conceive, reduce to practice or otherwise develop certain intellectual property jointly with Students or Faculty Members (such intellectual property, “Joint IP”). You hereby acknowledge and agree that you, together with any such Students or Faculty Members, are solely responsible for determining the allocation of intellectual property rights governing such Joint IP, and that Esme Learning assumes no responsibility for or liability in connection with the allocation or enforcement of any such intellectual property rights. We note that Users may be located in different countries where law or expectations of ownership or use of Joint IP may not be the same as those in your home country, so we encourage you to establish and agree in advance to terms regarding any Joint IP that you think may be valuable.

v. Honor Code; Grievance and Adjudication Process; Anti-Harassment Policy. You agree to be bound by (i) our Honor Code (ii) our Grievance and Adjudication Policy, incorporated herein by reference and available on our Website at (iii) our Anti-Harassment Policy which will be available upon enrollment in a course. You understand, acknowledge and agree that harassment of any kind will not be tolerated under any circumstances, and that your breach of our Anti-Harassment Policy or Section 7 (Your Use; Prohibited Conduct) of these Terms may serve as grounds for your immediate suspension or withdrawal from a Course. In addition to complying with our Honor Code, Grievance and Adjudication Policy and Anti-Harassment Policy, you agree to comply with any applicable code or policy of the School providing your Course.

vi. Course Content. As we are not responsible for any Course Content, we are not responsible for addressing your questions about such Course Content. If you have a question or concern about any Course Content, we suggest that you contact the Faculty Member or the School(s) providing such Course using the contact details available on our Platform. However, if you would like to report a concern about such Course Content, you may contact us at customerservice@esmelearning.com.

vii. Student Expectations. By participating in a Course, you agree to comply with this Section 4(d) (Course Participation) and any additional Course expectations set forth in the Course Prospectus of such Course. You may, from time to time, be allowed to request an extension or exception from a given Course expectation or deadline, which we, together with the School(s) offering such Course, may approve in our sole discretion. You understand that your failure to comply with Course expectations may result in your suspension or withdrawal from a Course.

(e) Certificate of Completion; Evaluation; Credits.

i. Grading and Evaluation. Your performance in a Course shall be subject to such evaluation metrics as may be set forth in the applicable Course Prospectus. Your performance may be graded on a pass-fail basis or letter grade basis, for example, but in any event shall be graded in the manner described in the Course Prospectus for such Course. You understand that your performance may be evaluated against that of your fellow students for purposes of awarding a grade.

ii. Certificate of Completion. Upon completion of the final session of your Registered Course, we may issue to you a certificate of completion (each, a “Certificate of Completion”). We reserve the right to withhold your Certificate of Completion if we or your School or Faculty Members reasonably determine that you have failed to comply with the student expectations established for such Course pursuant to Section 4(d) (Course Participation) of these Terms. We may also remove your Certificate of Completion at a later date if we later discover any such failure.

iii. No Guaranty of Class Credit. You understand and agree that, except as may be expressly set forth in these Terms or elsewhere on our Platform, including in a Course Prospectus, we cannot and do not guarantee that you will receive Credit for your participation in any Course from any School or other third party. You understand and agree that, except as may be expressly set forth in these Terms or elsewhere on our Platform, we do not and will not issue Credit for your participation in any course on behalf of any School or other third party.

(f) Privacy Policy. All information that you provide to register with us is subject to our Privacy Policy, available on our Website at esmelearning.com/pages/privacy-policy (our “Privacy Policy”).

Section 5. Scope of Service; Modifying and Terminating Service.

(a) Modification of Services. We may change our Services at any time. If you do not like our Services or these Terms, please let us know and provide constructive feedback by sending us an email at customerservice@esmelearning.com. We do not promise to make any changes that you suggest, and your sole remedy if you are dissatisfied with our Services or these Terms is that you may discontinue your use of our Services.

(b) Suspension of Services. We may alter, suspend or discontinue our Services in whole or in part, at any time and for any reason, without notice. Our Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use our Services, you must have a computer with Internet access that can access our Website or a compatible mobile device enabled with any mobile application we may provide.

(c) Termination by Esme Learning. We may terminate your access to our Services, in our sole discretion, for any reason and at any time, upon electronic notice to you at the email address provided by you at registration. You agree that we are not liable to you or any third party for any termination of your access to our Services. We may change and update our Services from time to time. We may add or remove features including without limitation making free Services into paid Services and vice versa. We will give you appropriate advance notice about any major changes, although you understand that we may stop, suspend or change our Services at any time without prior notice.

(d) Termination by You. You may terminate these Terms at any time by ceasing to use our Services or by closing your account. On our Services, we will include instructions for how to close your Account. We may update these instructions and our process to close your account from time to time. Please follow the instructions on our Services to close your account if you would like to do so.

(e) Telecommunications. When using our Services, your telecommunications carrier’s normal rates and charges apply. We are not responsible for any charges you incur from your telecommunications carrier as a result of use of our Services. You are responsible for ensuring that, at all times while using our Services, you are not in violation of your agreement with your telecommunications carrier.

(f) Survival of Terms. The following Sections of these Terms and any accrued obligations will survive any termination of these Terms: 6–12, and any related definitions.

Section 6. Licenses, Content and Individual Data.

(a) License to Use; Privacy Policy; Security

i. License to Use. Subject to these Terms and any other agreement between you and us, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use any application we may offer on a compatible mobile device for your personal, non-commercial purposes and use of our Platform, in each case, solely in the manner enabled by us.

ii. Limitations on License to Use. Your license to use our Services is automatically revoked if you violate these Terms. From time to time, we may upgrade our Services or make improvements to our Services. You agree that these Terms will apply to all such upgrades or improvements. The foregoing license grant is not a sale of any mobile application we may provide or the Website or a sale of a copy of any such application or our Website, and we retain all rights and interest in our Services. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. We reserve all rights not expressly granted under these Terms.

iii. Privacy Policy. Our Privacy Policy describes the collection, use and disclosure of data and information by us in connection with our Services. Our Privacy Policy, as may be updated by us from time to time in accordance with its terms, is hereby incorporated into these Terms, and you hereby agree to the collection, use and disclosure practices set forth therein.

iv. Security. You acknowledge that our Services use the Internet for data transfer and Internet-connected servers to store Content and Individual Data. While we use commercially reasonable security measures for such servers, no security measures are 100% effective and Internet communications may have inherent insecurities. As such, we do not make any representation or warranty regarding the security offered in respect of our Services.

(b) Esme Learning Content; Uploaded Content; Individual Data.

i. Our Content. Subject to these Terms and any other agreement between you and us, we hereby grant you a limited, personal, non-transferable, non-exclusive, non-sublicensable, revocable license to access and use Content that we make available through our Services, solely for your personal and non-commercial use, and subject to any restrictions on certain types of Content set forth in these Terms. You understand that the Content that is posted on our Services is used by you at your own risk.

ii. Changes to Content. We reserve the right to make changes to Content, descriptions or specifications of our Services, or other information without obligation to issue any notice of such changes.

iii. No Implied Licenses. Nothing contained on our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use our Services or any Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with our prior written permission or the permission of the third party that may own the trademark or copyright of material displayed on our Services.

iv. Rights in User Content Granted by You. You hereby grant to us a non-exclusive, perpetual, irrevocable, worldwide, sublicensable, transferable, royalty free, fully paid up license to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, publicly display and otherwise use your User Content, and you understand that we may allow any third party to use your User Content as well. You will own your Individual Data. You hereby grant us a non-exclusive, perpetual, irrevocable, worldwide, sublicensable, transferable, royalty free, fully paid up license to reproduce, distribute, prepare derivative works of, modify, translate, adapt, publicly perform, publicly display and otherwise use any Individual Data, and you understand that we may allow any third party to use such Individual Data as well.

v. Your Responsibility for User Content. You are solely responsible for all of your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through our Services, nor any use of your User Content by Esme Learning on or through our Services, will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(c) Copyright Infringement; DMCA Policy. If you believe that any materials on our Services infringe your copyright, you may request that such materials be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an agent and must include the following: (1) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (2) identification of the material that you believe to be infringing, including a description of the material, and its location on our Website; (3) your name, address, telephone number and email address; (4) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law; (5) a statement that the information in your claim is accurate; and (6) a statement that “under penalty of perjury,” you declare that you are the lawful copyright owner or are authorized to act on the owner’s behalf. Our agent for copyright issues relating to our Services is Copyright Agent, 250 1st Ave, Unit 336, Charlestown MA 02129 or customerservice@esmelearning.com To protect the rights of copyright owners, we reserve the right to suspend your Account and/or other any user privileges, delete or disable content alleged to be infringing and/or terminate the Account and/or other user privileges of a repeat infringer.

(d) Unsolicited Ideas and Feedback. We welcome your feedback, ideas and suggestions (collectively, “Suggestions”). It is important to be aware of the following restrictions with regards to your Suggestions. If you send us any Suggestions, you agree that: (1) your Suggestion(s) become our property and you are not owed any compensation in exchange; (2) none of the Suggestion(s) contain confidential or proprietary information of any third party; (3) we may use or redistribute Suggestion(s) for any purpose and in any way; (4) there is no obligation for us to review your Suggestion(s); and (5) we have no obligation to keep any Suggestions confidential

Section 7. Your Use; Prohibited Conduct.

(a) General. As a condition of your use of our Services, you will not use our Services for any purpose that is unlawful or prohibited by these Terms. You agree to comply with any other applicable terms and conditions of use set forth on our Services.

(b) Use of Services. You may not use our Services in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of our Services. You may not obtain or attempt to obtain any information through any means not intentionally made available through our Services. In the event that you gain access to information not intended to be accessed by you, you agree that you will immediately notify us and destroy all copies of such information in your possession.

(c) Prohibited Conduct. You agree not, and will not permit any person or entity, to: (i) use, or allow the use of, our Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign or other applicable law or rules and regulations of regulatory or administrative organizations; (ii) act in a fraudulent, tortious, malicious or negligent manner when using our Services; (iii) obtain unauthorized access to any computer system through our Services; (iv) circumvent, remove or otherwise interfere with any security-related features of our Services, features that prevent copying or using any part of our Services or features that enforce limitations on the use of our Services or any Content; (v) introduce viruses, worms, Trojan horses and/or harmful code to our Services; and (vi) use any robot, spider, site search/retrieval application or other automated device, process or means to access, retrieve, scrape or index any portion of our Services or any Content.

(d) Additional Restrictions. In addition, you agree that you will not, and will not authorize or facilitate any attempt by another person or organization to use our Services to: (i) transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious or otherwise objectionable, as determined by us; (ii) use a name or language that we, in our sole discretion, deem offensive; (iii) post defamatory statements; (iv) post hateful or offensive Content or Content that disparages any ethnic, racial, sexual, gender, religious or other group; (v) post Content that depicts or advocates the use of illegal drugs; (vi) post Content that characterizes violence as acceptable, glamorous or desirable; (vii) post Content which infringes another’s copyright, trademark or trade secret; (viii) post unsolicited advertising or unlawfully promote products or services; (ix) harass, threaten, bully, stalk or intentionally embarrass or cause distress to another person or entity; (x) promote, solicit or participate in any multi-level marketing or pyramid schemes; (xi) exploit children under 18 years of age; (xii) engage in disruptive activity, such as sending multiple messages in an effort to monopolize a forum; (xiii) invade the privacy of any person, including without limitation posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age); (xiv) solicit personal information from children under 13 years of age; (xv) create a false identity or impersonate another person or entity; or (xvi) encourage conduct that would constitute a criminal or civil offense. The restrictions in this Section 8(d) (Additional Restrictions) are intended to be illustrative, and we reserve the right to consider other conduct to be prohibited. In addition, you will not post any content to any of our social media accounts that is any of items (i)–(xvi) above.

(e) Intellectual Property Rights. You agree and acknowledge that the structure, organization and code used in conjunction with our Services are proprietary to us. You shall not, and shall not permit any person or entity to: (i) use our Services on a service bureau, time sharing or any similar basis, or otherwise for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of our Services or any Content available through the foregoing; or (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from our Services. You shall not sell, transfer, publish, disclose, display or otherwise make available our Services including any modifications, enhancements, derivatives and other software and materials provided hereunder by us or copies thereof to others in violation of these Terms. Unless otherwise noted, all Content contained on our Services is the property of us and/or our affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners.

Section 8. Third Party Services.

(a) Third Party Services and Links. Our Services may contain links to third party sites. These links are provided to you as a convenience, and we are not responsible for the content of any linked third party site. Any third party site accessed from our Services is independent from us, and we have no control over the content of that site. In addition, a link to any third party site does not imply that we endorse or accept any responsibility for the content or use of such site. Use of any third party site is subject to its terms of service and privacy policy. We request that you exercise caution and good judgment when using third party sites. Our Service may include features or functionalities that interoperate with services operated by third parties, which may be pursuant to a generally available application programming interface made available by such a third party or pursuant to an agreement that we have with such a third party. We have no control over any features or functionalities offered by any third party, and those features or functionalities may be modified, suspended or terminated at any time with no notice.

(b) Providers of Third Party Platforms. You hereby acknowledge and agree that all of our licensors, suppliers or other third parties: (i) are not parties to these Terms; (ii) have no obligation whatsoever to furnish any maintenance or support services with respect to Esme Learning; (iii) are not responsible for addressing claims by you or any third party relating to our Services, including without limitation any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; and (iv) have no responsibility to investigate, defend, settle or discharge any claim that our Services or use thereof infringes any third party intellectual property rights.

Section 9. Limitation of Liability; Disclaimers; Miscellaneous.

(a) Disclaimer.

i. No Warranty. OUR SERVICES AND ALL CONTENT ON OR ACCESSIBLE FROM OUR SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, WE DO NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE THROUGH OUR SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING WITHOUT LIMITATION MECHANISMS FOR THE DOWNLOADING AND TRANSMITTING CONTENT) PROVIDED BY OUR SERVICES WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THAT OUR SERVERS OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

ii. Personal Information. WE AND OUR AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.

iii. Content. Under no circumstances will we be liable for any loss or damage caused by failed delivery or receipt of Content or any third party’s use or distribution of Content. You hereby acknowledge and agree that Esme Learning merely stores and hosts User Content but does not actively create User Content. Under no circumstances will Esme Learning be liable for any claims that may arise from User Content, including without limitation claims for intellectual property infringement.

(b) Limitation of Liability.

i. General. IN NO EVENT SHALL WE BE LIABLE TO YOU, ANY OTHER USER OF OUR SERVICES, THIRD PARTY PROVIDERS OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF OUR SERVICES, YOUR CONTACT INFORMATION, CONTENT OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

ii. Limitation. OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM THESE TERMS SHALL NOT EXCEED THE GREATEST OF (I) $100.00; OR (II) THE AGGREGATE AMOUNT YOU HAVE PAID TO US IN FEES, IF ANY, IN THE THEN-PRIOR TWELVE (12)-MONTH PERIOD.

iii. Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU BUT SHALL INSTEAD APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

(c) Release. Our Services are only a means of connecting Users, and except to the extent, if any, that we serve as a communications platform among Users for purposes of engaging with Course-specific content, we do not take part in the interaction between or among Users. As a result of our limited involvement in the actual contact between or among Users, in the event that you have a dispute with any Users, you hereby release us, and our officers, directors, employees, agents, investors, subsidiaries and contractors from any and all claims, demands or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. We expressly disclaim any liability or claims that may arise between or among Users of our Services. You waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor." You waive any other similar provision of applicable law that applies to you.

(d) Indemnification. By using our Services, you hereby agree to indemnify and hold harmless us and our officers, directors, employees and agents from any claims, damages, losses, liabilities, and all costs and expenses of defense (collectively, “Claims”), including without limitation attorneys' fees, resulting directly or indirectly from a claim by a third party that arises in connection with (i) your provision of any Content, (ii) your use of our Services and/or (iii) any user or other third party’s use of any Content that you submit via our Services. At our option, you agree to defend us from any Claims.

(e) Waiver of Rights. Esme Learning’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly agent of Esme Learning.

(f) Miscellaneous. You may not assign or transfer your rights or obligations under these Terms in whole or in part to any third party without our consent. These Terms shall bind and inure to the benefit of the parties to these Terms and their respective successors, permitted transferees and permitted assigns. We and you are independent contractors and are not partners, joint venturers, agents, employees or representatives of each other. These Terms, including our Privacy Policy, contain the entire understanding of the parties with respect to the transactions and matters contemplated herein, supersede all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by us, and cannot be amended except by a writing signed by both parties or by our posting of an amended version of these Terms on our Website. The headings and captions used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms. If any part of these Terms is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.

Minors. Our Services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. If you are a parent or guardian and you discover that your child has created an unauthorized account on our Services, please contact us at customerservice@esmelearning.com, or +1 (800) 649-1844 and we will remove the account.

Section 12. Agreement to Arbitrate; Waiver of Class Action.

(a) Mandatory Arbitration of Disputes; Arbitration Procedures. Except if you opt-out or for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents) or for items (1)–(3) set forth in Section 11, you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to these Terms, our Services, and/or our Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in the Commonwealth of Massachusetts. under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and you and we hereby expressly waive trial by jury. You and we shall appoint as sole arbitrator a person mutually agreed by you and us or, if you and we cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys' fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms.

(b) Class Action Waiver. Any claims brought by you or us must be brought in that party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by these Terms. You hereby waive any and all rights to bring any claims related to these Terms and/or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on your own behalf.

(c) Opt-out. You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your Esme Learning account, if applicable, to which the opt-out applies and a clear statement that you want to opt out of this Agreement to Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: Esme Learning Group Ltd. ATTN: Arbitration Out-Out, 250 1st Ave, Unit 336, Charlestown MA 02129 USA.

(d) Effect of Changes on Arbitration. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or Website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our Website, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.

(e) Survival. In accordance with Section 5 (Scope of Service; Modifying and Terminating Service), this Section 12 (Agreement to Arbitrate; Waiver of Class Action) will survive the termination of your relationship with us.

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