openclass eula

gistfile1.txt

Terms of Service 

Products and Services 

Subject to the terms and conditions set forth herein (the "Agreement"), eCollege.com, a Pearson company (hereinafter eCollege.com shall be referred to as "Pearson"), hereby agrees to provide you, provided that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction, with access to and use of, through a supported Internet browser, the products and services ("Products and Services"). The specific content, features and functionality reflected in the Products and Services are subject to Pearson's sole discretion and are also subject to change and discontinuation by Pearson at any time in its sole discretion. 

License 

Pearson hereby grants you a non-transferable, non-exclusive, non-sublicenseable license to access and use the applicable portions of the Products and Services during the term of this Agreement for the sole purpose of receiving (or in the case of an educational institution's associated administrative staff and faculty, providing) educational, instructional and related administrative services from your applicable educational institution (the term educational institution shall also include, for purposes of this Agreement, associated administrative staff and faculty). All such access and use by you shall be subject to the terms and conditions of this Agreement. You acknowledge that the license granted under this Agreement does not provide you with title to or ownership of the Products and Services, but only a right of limited use under the terms and conditions of this Agreement. Pearson and its licensors shall retain all right, title and interest in the Products and Services and all proprietary information and materials provided therewith, including all related patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill and other intellectual property. Except as may be expressly permitted by this Agreement, you may not use, modify, adapt, reformat, download, upload, post, reproduce, broadcast, publish, display, perform, transfer or redistribute any materials contained within the Products or Services in any form, format or media or by means of any technology without obtaining the prior written authorization of the applicable owner of the intellectual property rights in such materials. You are responsible for meeting the then-current hardware, operating system, Internet browser and other technical requirements necessary to properly use and access the Products and Services. If you are under 18 years of age, you may access or use the Products and Services only with the consent and involvement of a parent or guardian. All rights not specifically granted herein are reserved by Pearson. 

User Identification and Passwords 

You hereby acknowledge the importance of maintaining the confidentiality of your password and user identification and that your data security may be compromised if you do not follow all applicable security policies and procedures and take other appropriate steps to maintain the security of the Products and Services, including, without limitation, maintaining the confidentiality of your user identification and password. You are responsible for maintaining the confidentiality of your user identification and password, and are responsible for all activities that occur through your account. You agree to immediately notify Pearson of any unauthorized use of your user identification or password or any other breach of security that you become aware of. You further agree and acknowledge that the information you have provided to Pearson in order to register for the Products and Services is complete, accurate and current, and that you will notify Pearson within fifteen days of any change in your registration information. You also understand and acknowledge that the administrators and faculty associated with your educational institution may have access to your account and its content, and may suspend or terminate your account access and your ability to modify your account. 

Your Information 

You may provide Pearson, either directly or indirectly (through placement of such information, materials and data within the Products and Services) with information, materials and data ("Your Information"). As between Pearson and you, all of Your Information is your exclusive and proprietary property. Pearson shall under no circumstances, use, sell, lease, assign or sublicense Your Information except as provided in this Agreement. You grant to Pearson a limited, royalty-free, nonexclusive license during the term of this Agreement to copy, transmit, use and prepare derivative works of Your Information to the extent necessary for Pearson to perform its obligations under this Agreement. This license shall not be construed to permit Pearson to use Your Information for any other purpose, except as expressly permitted by this Agreement. You represent and warrant to Pearson that you own Your Information or have obtained all rights in Your Information necessary to provide Your Information to Pearson and convey the licenses granted herein to Pearson so that the use by Pearson to provide the Products and Services and other services does not violate the intellectual property rights or other rights of a third party. If any of Your Information is or becomes, or in Pearson's opinion is (a) likely to become the subject of a claim that it infringes any party's patents or copyrights or misappropriates such third party's trade secrets, or (b) indecent, obscene, threatening, libelous, slanderous, defamatory, illegal, or otherwise unlawful or tortious, including material that is harmful to children or violates third party privacy or publicity rights, Pearson shall give you notice of the potential issue and Pearson may, without liability under this Agreement, remove such information from the Products and Services until such time as the issue has been resolved to Pearson's satisfaction. 

Privacy and FERPA 

In order to provide the Products and Services to you, Pearson may receive and store certain types of personally identifiable information ("PII") with regards to you and your use of the Products and Services. Examples may include Your Information, registration information and system credentials, other information and records that you or your educational institution may provide to Pearson, information created through your interaction with our system (such as user activity records and server logs), Internet browser cookies, information from Third Party Services you may use, and direct interactions between you and Pearson personnel. Pearson will not use, make available or distribute any information in violation of the Family Educational Rights and Privacy Act or other applicable privacy law or regulation. Pearson may store, access and use your PII as necessary to perform its obligations and exercise its rights under this Agreement. Pearson may use anonymous data related to student performance, individual and aggregated demography and the activity of users within the Products and Services, for general research, product improvement and analytical purposes (which Pearson may share with other third parties). Pearson will not disclose PII associated with your use of the Products and Services to any third parties not affiliated with Pearson, except: (a) through tools and services within the Products and Services that facilitate instructor and student engagement, (b) through tools and services within the Products and Services that facilitate the exchange or provisioning of data to your educational institution, (c) where disclosure is requested by your educational institution, or (d) as otherwise specified within this Agreement (such as to enable Third Party Services). Pearson further reserves the right to disclose PII if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or enforceable governmental request; (b) enforce the terms of this Agreement, including investigation of potential violations hereof; (c) detect, prevent, investigate or otherwise address fraud (academic or otherwise), security or technical issues; (d) respond to claims that any user information, materials or data violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Pearson, its users and the public. You also understand and acknowledge that the administrators and faculty associated with your educational institution may have access to your account and your PII, and their use and access of such information shall be subject to such privacy guidelines and other policies as the educational institution may deem appropriate. 

IF YOU RESIDE IN THE EUROPEAN UNION, CANADA OR OTHER JURISDICTION WITH SIMILAR DATA TRANSFER REGULATIONS, YOU ACKNOWLEDGE YOUR EXPLICIT CONSENT THAT YOUR PII MAY BE TRANSFERRED AND STORED IN COUNTRIES OUTSIDE THE EU, CANADA OR YOUR RESIDENT JURISDICTION, INCLUDING THE UNITED STATES. 

Appropriate Conduct 

Except as expressly provided for in this Agreement, under no circumstances may you: (a) directly or indirectly provide access to the Products and Services, in whole or in part, to another individual through your account, (b) attempt, or allow others, to modify, adapt, decompile, decrypt, disassemble, extract or reverse engineer any part of the Products and Services, (c) engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws or regulations; (d) transmit, display or store infringing, obscene, threatening, indecent, libelous, slanderous, defamatory or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (e) introduce malicious programs (such as viruses, worms or Trojan horses) into the Products and Services; (f) interfere with or disrupt the integrity or performance of the Products and Services or the data contained or used therein; (e) attempt to gain unauthorized access to the Products and Services or its related systems or networks; or (f) harass or interfere with another user's use of the Products and Services. You will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Products and Services. Pearson reserves the right to suspend or terminate access to and use of the Products and Services with respect to any individual user that Pearson reasonably believes has undertaken, or participated in, any of the foregoing activities, violated the terms of this Agreement, or whose actions have, or are likely to, otherwise cause harm to Pearson or the Products and Services. Additionally, Pearson may suspend or terminate an individual user's access at the request of the applicable educational institutional for that user. 

Third Party Services 

If you elect to use third party products and/or services (collectively, the "Third Party Services") that are accessed through an integration from the Products and Services to the third party's applications, the privacy policies and other terms and conditions applicable to the use of such Third Party Services may differ from those applicable to the use of the Products and Services, and your access to and use of the Third Party Services shall be subject to such policies and terms and conditions. To the extent that your use of such Third Party Services requires the transfer of, or access to, any of Your Information or other data by the third party, you hereby expressly consent to such transfer and/or access. Pearson makes no representations or warranties as to the Third Party Services, either express or implied, including any implied warranties of merchantability, quality, accuracy, performance, fitness for a particular purpose, or non-infringement, and Pearson shall not be liable to you for any claims, expenses, costs or other damages of any kind, arising out of or relating to the Third Party Services or your use thereof. For purposes of clarification, products and services provided by Pearson under this Agreement shall not be considered to be Third Party Services. 

Pearson Warranties and Representations 

YOUR USE OF PRODUCTS AND SERVICES IS AT YOUR SOLE RISK. PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PEARSON MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED BY PEARSON HEREUNDER. PEARSON HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, WHETHER STATUTORY, ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR OTHERWISE, INCLUDING WITHOUT LIMITATION TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. PEARSON MAKES NO WARRANTY THAT THE PRODUCTS AND SERVICES OR YOUR USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PEARSON OR THROUGH OR FROM PRODUCTS AND SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. 

Limited Liability 

IN NO EVENT SHALL PEARSON OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION LOST PROFITS OR GOODWILL, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF OR FAILURE TO BE ABLE TO USE THE PRODUCTS AND SERVICES. PEARSON'S AND ITS AFFILIATES' MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE TOTAL FEES PAID TO PEARSON BY YOU FOR THE SPECIFIC PRODUCTS AND SERVICES FROM WHICH THE LOSS ARISES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAILS OF THEIR ESSENTIAL PURPOSE. No action, regardless of form, arising under this Agreement may be brought by you more than one year after the facts supporting the cause of action become known, or reasonably should have become known. 

Exclusions and Limitations 

NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND IN SUCH INSTANCES OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. 

Indemnification 

To the extent permitted by law, you agree to defend, indemnify and hold harmless Pearson, and its affiliates, officers, agents, employees, advertisers, licensors, suppliers and partners, (collectively "Pearson and Partners") from any claims and expenses arising from or in any way related to any violation of this Agreement or your use of the Products and Services. 

Notice 

Pearson may give notice to you by email, by a posting on the Products and Services, or by conventional mail. Notice by Pearson shall be effective on the date that Pearson makes a good faith effort to reach you through one of those means. 

You shall give notice to Pearson as directed within the Products and Services for normal user inquiries and technical support requests. For formal legal notices, you must use the following address: 

Pearson eCollege 
Attn: Legal Department 
2154 E. Commons Ave., Suite 4000 
Centennial, CO 80122, USA 

Notice by you shall be effective on the date that Pearson actually receives the notice. 

Miscellaneous 

Pearson shall not be considered to be in default as a result of its delay or failure to perform its obligations under this Agreement when such delay or failure arises out of causes beyond its reasonable control. This Agreement and all related disputes between the parties shall be construed under and controlled by the laws of the State of New York, USA, excluding its choice of law principles that would require the application of the laws of another jurisdiction, and the parties hereto hereby consent to exclusive jurisdiction and venue in the State of New York, USA. Each party hereby waives any claim that any legal proceeding brought in accordance with this section has been brought in an inconvenient forum or that the venue of that proceeding is improper. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. You shall not assign or otherwise transfer this Agreement, or any of its rights and obligations under this Agreement, without the prior written consent of Pearson, and any such attempted assignment or transfer without such consent will be null and void. This Agreement sets forth the entire understanding of the parties with respect to the subject matter covered by this Agreement and supersedes any and all prior understandings, representations, proposals, communications and agreements, whether written or oral, between the parties with respect to such subject matter. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. No waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision. The captions and headings in this Agreement are inserted only as a matter of convenience and for reference, and in no way define the scope or content of this Agreement or the construction of any provision hereof or of any document or instrument referred to herein. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 

v1 - updated July 1, 2011