PLEASE READ THIS AGREEMENT CAREFULLY;
IT IS A BINDING CONTRACT
Last Modified on December 26, 2012
1.1. "Content” means, collectively, all information, data, documents, text, messages and other communications, software, music, sound, photographs, graphics and video that are uploaded, or caused to be uploaded onto or downloaded or caused to be downloaded, from the Courses by you or your Students.
1.2. "Courses” means Web-based services provided by Centro Latino under the names "Leamos” and "Listos” designed to teach Spanish language literacy to users and all computer software, manuals, workbooks, curricula and training protocols provided in connection with such services.
1.3. "Student” means an end-user of the Courses who you have authorized to use the Courses under your Subscription and who has agreed in writing to comply with the provisions of Sections 2.2, 2.5 and 9.6 of this ToU.
1.4. "Subscriber”, "you” or "your” means you and/or your employees, agents, representatives, systems administrators, affiliates, subsidiaries, subcontractors, licensors, licensees, and third parties authorized to access the Courses under your Subscription.
1.5. "Subscription” means the use of the Courses by you and/or your Students in accordance with the terms and conditions of this ToU.
2.Rights and Restrictions.
2.1.Use of the Courses.Subject to all of the terms and conditions of this ToU, Centro Latino will provide you with online access to and use of the Courses and permits you to provide access to the Courses to the number of Students corresponding to your Subscription, via the Internet by use of a browser provided by each Student. The Courses are hosted on a server that is maintained by Centro Latino or its third-party designee. You and your Students acquire no ownership of any portion of the Courses and no right to use or offer the Courses beyond the terms of this ToU. The Courses may not be resold, leased, sublicensed or distributed, accessed or used for any purpose other than as specified in this ToU without Centro Latino's prior written approval. No implied licenses are granted and Centro Latino reserves all rights not granted herein.
2.2.Restrictions. You shall not, and shall not permit any third party to, (i) use the Courses through any timesharing service, service bureau, network or by any other means for revenue-generating purposes, (ii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any portions of the Courses, except to the extent permitted by applicable law, or (iii) modify or alter any portion of the Courses.
2.3.Availability of the Courses.We will make commercially reasonable efforts to make the Courses available for you and your Students on a 24x7 basis, except that the Courses may be unavailable from time to time for any reason, including without limitation, interruption due to network connectivity, network and server outages, and backup and regular maintenance. We will make commercially reasonable efforts to conduct regular maintenance and backups at times other than standard business hours. You and your Students are responsible at your or your Students' own expense to acquire access to the Internet, including any services, equipment and access devices necessary to access the Courses via the Internet. We may specify from time to time the version(s) of related products, such as supported browser versions, required to use the Courses.
2.4.Setup. Implementation. Customization. Training. Updates. Upgrades. Downgrades. Technical Support.Centro Latino may, in its sole discretion, modify any of the features, components and functionality of the Courses from time to time; provided, however, that Centro Latino will use commercially reasonable efforts to provide you and your Students with advance notice of any modification or maintenance of the Courses that is expected to significantly affect your or your Students' use of, or ability to access, the Courses. Centro Latino has sole discretion to determine the content, timeliness, frequency and cost of any updates, upgrades or downgrades of the Courses, and Centro Latino will give you advance notice of the release and cost of any such updates, upgrades or downgrades. We will make commercially reasonable efforts to correct bugs, defects or errors that we determine in our sole judgment will have a material effect on the access to or operation of the Courses in accordance with this ToU. Unless otherwise set forth in this ToU, we will provide you with setup, implementation, customization, training, and technical support services on the use of the Courses at a time and location and in a manner and frequency and timeliness that we determine at our sole discretion. We will have no responsibility to provide any support or training for any third-party products or services that you use with the Courses including, but not limited to, telecommunications, access to the Internet, web browsers, Internet service providers, applications service providers, applications software, networking, operating systems and computer hardware.
2.5.Proprietary Rights.As between the parties, subject to the rights granted in this ToU, Centro Latino retains all right, title and interest in and to the Courses (excluding Content) and all intellectual property and proprietary rights anywhere in the world therein. The Courses contain proprietary and confidential information and are protected by trademark, copyright or other intellectual property laws and international treaty provisions. You agree to maintain the confidentiality of such proprietary and confidential information and not to disclose any such information to any third party without our prior written consent. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively, "Marks”) of Centro Latino are and will remain our exclusive property and nothing in this ToU grants you the right to use any of the Marks.
2.7.Outside Resources.At our sole discretion and at any time without prior notice we may, but will have no obligation to, add to or remove from the Courses links to third-party websites or resources that provide content, advertising, products, services or other materials that are not directly under our control (collectively, "Outside Resources”).
3.Fees. Payment Terms. Billing Disputes. Taxes.In consideration of our granting you access to the Courses hereunder, you agree to pay all fees specified on the Site or in our invoice to you ("Fees”). All Fees are payable in US dollars. You are responsible for all transmission fees, currency exchange fees, wire and bank fees chargeable by or deducted from remittances by any bank, including the transmitting, intermediary or recipient bank. If we permit you to pay using a credit card, you will give us a valid credit card number and notify us at once if the card expires, is cancelled, replaced, or if the billing address changes. You are responsible for and will pay any applicable taxes applicable to your Subscription or implementation and use of the Courses, including but not limited to, federal, state, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in effect or enacted in the future. If you are exempt from payment of any such taxes, you will provide us with an original government-issued certificate attesting to the tax-exempt status.
4.1.Term.Unless otherwise set forth in writing by us, this ToU begins on the date when we first make the Courses accessible to you and continues in effect until your Subscription expires or is terminated in accordance with this Section 4. Upon termination of this ToU or expiration or any termination of your Subscription, you will immediately cease all access to and use of the Courses and you shall cause your Students to do the same. All licenses granted under this ToU will automatically terminate immediately upon any termination and such rights shall revert to Centro Latino.
4.2.Termination by Us.Upon written notice, at our sole discretion with or without cause we may (a) discontinue the Courses or any part thereof, or (b) suspend or terminate your Subscription, with or without notice if you (i) do not pay Fees when due, or (ii) engage in any conduct that we determine at our sole and absolute discretion (x) violates this ToU, violates our rights or the rights of any third party, or (z) is unlawful or otherwise inappropriate. Upon termination we may delete all Content and terminate your access, and your Students' access, to and use of the Courses. We will not be liable to you, your Students or any third-party for any termination of access to the Courses.
4.3.Fees Upon Termination of Subscription.Upon expiration of your Subscription or termination of this ToU or your Subscription, you will remain obligated to pay all unpaid, accrued fees due under this ToU, and for charges incurred by us owing to your non-payment such as (but not limited to) collection costs and attorney's fees.
4.4.Upon Termination by You.All Fees are non-refundable and the full amount of unpaid Fees during the term of your Subscription shall be immediately due and payable if you terminate your Subscription prior to its expiration date.
4.5.Upon Termination by Us.If we discontinue the Courses or any part thereof, or terminate your Subscription without cause, you will only be responsible for the payment of Fees accrued through the date of termination, including a pro-rated portion of the Fees payable for the term of your Subscription. If we terminate your Subscription for cause, including without limitation your breach of this ToU or your or your Students' improper use of the Courses, you will be responsible for the entire amount of the Fees payable for the term of your Subscription, including without limitation unbilled Fees, plus a disconnect fee, all of which shall be immediately due and payable. If we terminate your Subscription because your credit card was declined, charges were reversed or otherwise for non-payment, you shall be fully liable to us for all accrued Fees.
4.6.Survival upon termination.Sections 2.5, 4.4, 4.5, 4.6, 5, 6, 7, 8 and 9 of this ToU will survive either the expiration of your Subscription or the expiration or any termination of this ToU.
5.Disclaimer of warranties.YOUR USE OF THE COURSES IS AT YOUR SOLE RISK. THE COURSES ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. WE EXPRESSLY DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS TOU OR THE COURSES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT (i) THE COURSES WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS; (ii) THE OPERATION OF THE COURSES OR OUTSIDE RESOURCES WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, OR ERROR-FREE; (iii) OUR SECURITY MEASURES AND PRACTICES WILL PROTECT FROM UNAUTHORIZED ACCESS, INTRUSIONS, TAMPERING OR OTHER SECURITY BREACHES; (iv) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COURSES OR OUTSIDE RESOURCES WILL BE ACCURATE OR RELIABLE; (v) WE WILL CORRECT ALL BUGS, DEFECTS, OR ERRORS IN THE COURSES, OR OTHERWISE SUPPORT OR MAINTAIN THE COURSES; (vi) THE COURSES WILL BE FREE OF ALL VIRUSES OR OTHER HARMFUL COMPONENTS OR (vii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU OR YOUR STUDENTS THROUGH THE COURSES WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE COURSES IS DOWNLOADED OR OBTAINED AT YOUR OR YOUR STUDENTS' OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR OR YOUR STUDENTS' COMPUTERS SYSTEMS OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU OR YOUR STUDENTS FROM CENTRO LATINO OR THROUGH OR FROM THE COURSES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOU.
6.Indemnity. You will fully indemnify, defend and hold harmless us, our affiliates, subsidiaries, licensors, licensees and subcontractors, and their directors, officers, agents and employees (collectively, "Indemnitees”), from any and all claims, demands, causes of action, suits and proceedings (including fines, penalties, costs, damages, losses, judgments, settlements, and expenses, such as reasonable attorneys' fees) asserted by any third party arising from or relating to (i) any errors, omissions or any other actions arising out of or related to your use of the Courses or use of the Courses by any of your Students; (ii) your placement or transmission, or placement by any of your Students, of any Content through the Courses; (iii) your violation, or violation by any of your Students, of any term of this ToU; or (iv) your violation, or violation by any of your Students, of our or another party's rights.
7.Limitation of liability. NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CENTRO LATINO SHALL NOT BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (i) ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR CONTENT, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (ii) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS; (iii) ANY FAILURE OF PERFORMANCE OUTSIDE OF OUR REASONABLE CONTROL OR RESULTING FROM YOUR OR ANY THIRD PARTY'S EQUIPMENT; OR (iv) ANY AMOUNTS IN EXCESS OF THE FEES IN AGGREGATE PAID TO US HEREUNDER DURING THE SIX (6)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE.
8.DisputeResolution.All disputes relating to the validity, construction or performance of this ToU will be resolved by arbitration under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated. Such arbitration will be held in Los Angeles, California, before a single arbitrator. The decision of the arbitrator will be conclusive, binding and final and may be enforced in any court of competent jurisdiction. You must initiate a dispute arising out of or related to this ToU within one (1) year after such claim or cause of action arose or it will be forever barred. If any action is brought to enforce or interpret the terms of this ToU, the prevailing party will be entitled to an award of reasonable attorneys' fees it has incurred in addition to any other relief to which that party may be entitled.
9.1.Governing Law and Jurisdiction.This ToU will be governed by the laws of the State of California without regard to its conflicts of law provisions. Both parties agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within the county of Los Angeles, California.
9.2.Force Majeure.Neither party will be liable for any damages or penalties for delays in the performance of or failure to perform any obligation hereunder or for failure to give the other party prior notice thereof when such delays or failures are due to the elements, acts of God, acts of governmental or regulatory agencies, compliance with laws or regulation (including, without limitation, those related to infringement), terrorism, infrastructure problems, strikes or lockouts, civil unrest, riots, shortages of materials or supplies, telecommunications carrier outages and other interruptions of carrier services, delays in transportation, delays in delivery by vendors or other causes beyond that party's reasonable control.
9.3.Entire Agreement. Partial Invalidity. No Waiver. Modifications. Section Titles. Assignees.This ToU is the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements, either oral or written, between the parties hereto with respect to your Subscription or use of the Courses. No representations, inducements, promises, or ToU, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and no other ToU, statement, or promise not contained in this ToU will be valid or binding. If any provision in this ToU is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. The failure of either party in one or more instances to insist on the other party's performance of any of the provisions of this ToU will in no way be construed to be a waiver of such provisions in the future. The section titles in this ToU are for convenience only and have no legal or contractual effect.
9.4.Notices. All notices and other communications shall be in writing and delivered by facsimile (with a copy of the notice sent by certified mail), an overnight courier service with tracking capabilities, or certified mail, return receipt requested, postage prepaid. Notices shall be sent to a party at its addresses specified in this ToU or in the Subscription enrollment electronic or paper forms. A party may change its address for notices from time to time by providing notice to the other party pursuant to this Section 9.4. Notices shall be effective only upon receipt, except notice shall be deemed received three (3) days after deposit in the mails. Notice by facsimile shall be deemed received the first business day following its transmission.
9.5.Assignment.You may not assign any of your rights or obligations hereunder without our prior written consent and any purported assignment without such consent shall be null and void. We may freely assign our rights and obligations under this ToU. This ToU shall be binding upon and inure to the benefit of the parties and their respective successors, transferees and permitted assignees.
9.6.Compliance with Export Laws.You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your Students not to, export, direct or transfer the Courses, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
9.7.U.S. Government Users. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Courses is "commercial computer software” and "commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Courses is governed by the terms of this ToU.
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