OpenEnglish™ TERMS OF SERVICE
www.openenglish.com
Effective Date: January 5, 2006
Last Updated: Sep 23, 2008
Version 2.0
Welcome to OpenEnglish™ provided by FoxyP2 Inc. (the "Company", "we" or "us"). We are pleased to offer you access to the Service (as defined below), subject to these Terms of Service (the "Terms of Service") and the applicable OpenEnglish Privacy Policy (the "Privacy Policy"), found here. If you do not agree to the Terms of Service, please do not subscribe to or participate in a trial offer for the Service. By accessing and using the Service, you express your consent to, agreement with and understanding of the Terms of Service and the Privacy Policy.
1. About the Terms of Service Generally.
1.1. These Terms of Service ("Terms of Service") govern your rights to use the Service. Terms that are capitalized are defined either in the body of these Terms of Service or at Section 12, below. By using the Service, you acknowledge that you have read and understood these Terms of Service and agree to be bound by its terms and conditions. If you do not agree with the terms and conditions of these Terms of Service, do not use the Service or the Software.
1.2. The Company owns and operates OpenEnglish and the Service. We offer you the ability to learn English online through our online Service and offline through CDs, DVDs and manuals as well as downloads available on via the Service (collectively, the "Service"). The software is collectively referred to in these Terms of Conditions as the "Software". Certain of these Terms of Service apply to both of the Services and Software and certain of these Terms of Service apply to only a particular Service or particular Software. Throughout these Terms of Service, we will make clear to you what terms and conditions govern your rights to use each of the Services and Software.
1.3. Below is a short summary of some significant terms that are included in these Terms of Service. You should read the entire Terms of Service, including the detailed terms and conditions, before agreeing to these Terms of Service.
1.4. Please note that there may be separate end user license agreements and terms of service that you may need to accept for hardware and software that you may use in connection with the Service or the Software, or that may interact with the Service or the Software. Your failure to accept the terms of those agreements may limit your ability to fully use the Service and the Software. Additionally, the Service and the Software only work with compatible devices.
1.5. If you have any questions regarding these Terms of Service, or if you would like to contact us for any reason, write to FoxyP2 Inc., 333 Washington Blvd Suite #115, Marina Del Rey, California, 90292, Attn: Business and Legal Affairs; or send an email to info@openenglish.com.
2. License; Reservation of Rights.
By accepting these Terms of Service, you are granted a non-exclusive, non-transferable, non-sublicensable, limited right to install, enter, access and use the Service and the Software solely for the purposes of accessing the Service for personal use. All rights not expressly granted to you in these Terms of Service are reserved by the Company and its licensors, as applicable. You agree that this license is for your personal use and that no one other than you will use the Service or the Software. Other than the limited license granted in this Section 2, you have no other right, title or interest in the Service or the Software. You understand and acknowledge that in all circumstances your rights with respect to the Service will be limited by copyright law and by these Terms of Service.
3. Description of the Service.
3.1 Generally.
3.1.1 Your Account and Registration Information. You may browse, preview, and search within the Service without opening an OpenEnglish Account or providing Registration Information. However, to otherwise use the Service, including accessing the Service, you must register and open an OpenEnglish Account and provide Registration Information to the Company. If you wish to terminate your OpenEnglish Account, you can do so by sending an email to info@openenglish.com.
3.1.2 Accessing OpenEnglish Content. You may access OpenEnglish Content an unlimited number of times as long as you have subscribed to the Service. You may also transfer the OpenEnglish podcasts to certain portable devices for personal use. You may also burn OpenEnglish podcast on CDs or DVDs; however, once you have transferred OpenEnglish Content, you agree not to copy, distribute, or transfer it to any other media or device. Any burning or transferring capabilities of OpenEnglish Content is solely an accommodation to you and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners of the OpenEnglish Content, including any musical composition therein.
4. Description of the Software.
4.1 Generally. We reserve the right to automatically make available to you periodic updates, modifications and/or reinstallations of the Software. Such updates may be designed to address security, interoperability, performance or other issues. You consent that we may periodically update the Software stored on your personal computer without further notice to you and that such updates shall be included in the definition of the "Software" as defined in these Terms of Service.
5. Promotions; Promotional Codes.
5.1 Promotions. OpenEnglish, other FoxyP2 Inc. entities and certain third parties may from time-to-time place advertisements or present promotional offers and materials on the Service. Your participation in any promotion or offer is subject to the applicable rules associated with the promotion. Your dealings with other entities or third parties and your participation in third party promotions or offers that are advertised or presented on the Service are solely between you and such third party. Please note that you must be at least 13 years of age to participate in any promotion or offer that is in connection with or related to the Service in any way.
5.2 Promotional Codes. In connection with certain promotions or promotional offers, you may receive a valid promotional code for downloads from the Service, which may be provided to you on a "OpenEnglish Cash™ card", "OpenEnglish Cash™ coupon" or another promotional instrument, material or announcement (each a "Promotional Code"). Promotional Codes are valid for the value communicated with the Promotional Code and the promotional offer. In order to redeem a Promotional Code, you must follow the applicable redemption instructions related to the applicable promotion and Promotional Code. If you have properly redeemed a Promotional Code, your OpenEnglish Account will be credited for the value or applicable discount in the Promotional Code (for example, buy one, get one free). Use or redemption of Promotional Codes is subject to all applicable rules, expiration dates, service charges and any other limitations and restrictions that may be messaged with the applicable promotional offer, promotional materials, or Promotional Code as well as those terms and conditions concerning all Promotional Codes, including the applicable expiration dates of any such promotions. In addition, please note that Promotional Codes are not redeemable for cash, and unused portions of any Promotional Code may not be returned for a cash refund or any other value.
5.3 OpenEnglish Promotional Rights. If we have a reason to believe that you have violated the rules associated with any promotion, Promotional Code, offer or the Service, or if you have redeemed a fraudulent Promotional Code or a Promotional Code obtained through fraudulent methods, we have the right to request alternative forms of payment from you, and has the right to close your OpenEnglish Account. Closure of your OpenEnglish Account may affect your ability to access your OpenEnglish Content. If at any time you believe that we have closed your OpenEnglish Account in error, please email info@openenglish.com.
5.4 Additional Terms. Promotional Codes, special products, offerings and promotions displayed on the Service are considered no longer valid as of the earliest of (i) the expiration date, (ii) the date stated in the applicable rules or otherwise with the offer or Promotional Code, or (iii) as of the date the special product, offering or promotion is removed from the Service. Additionally, all products, offerings and promotions are subject to change or cancellation at any time by the Company without notice. Promotional Codes are only valid on the Service and within the territory specified on the Promotional Code.
5.5 Open English Fluency Guarantee. Open English Guarantees that you will achieve fluency with the Open English Fluency Course. If, upon completion** of your 12 month Open English Fluency Course, you have not achieved fluency*, Open English will provide a free 6-month extension ($239.70 value).
* For purposes hereof, "fluency" is the ability to express oneself readily and effortlessly in English, including the ability to understand English text from a wide variety of sources, to use English to take notes while someone is speaking in English, to talk in English to people about a wide variety of topics, and to understand people talking in English with limited difficulty.
** Completion of the 12 month Open English Fluency Course requires each of the following: (i) completion of all "strongly recommended" units; (ii) investment of 200+ accumulative Total Hours, as reflected on the student's Content Summary Chart; (iii) attendance at least 12 live sessions with an certified Open English teacher.
6. Gift Cards; Prepaid Cards; Additional Terms.
6.1 OpenEnglish Gift Cards. You may have the option to purchase gift certificates from the Service, which may be given by you to others as a gift (each an "OpenEnglish Gift Card"). To purchase an OpenEnglish Gift Card, follow the instructions provided on the Service and be sure to review all terms and conditions and disclosures concerning OpenEnglish Gift Cards before completing your purchase. Please note that if you purchase an OpenEnglish Gift Card from the Service for an individual that outside of the applicable territory or is otherwise unable to comply with or agree to these Terms of Service, that individual will not be able to redeem or use the OpenEnglish Gift Card on the Service. If you purchase an OpenEnglish Gift Card as a gift, it will be emailed or otherwise transferred to the intended recipient at the recipient email address or in accordance with other instructions you provided at the time of your purchase. We reserve the right to charge your credit card for the value of the OpenEnglish Gift Card you purchase. OpenEnglish Gift Cards are not refundable, exchangeable or cancelable once purchased and are subject to all OpenEnglish Gift Card Terms and Conditions available on the Service. OpenEnglish Gift Cards are only valid through the Service.
6.2 Prepaid Cards. You may have the option to purchase from third party retail locations Download Cards, Prepaid Cards and Gift Cards (collectively, "Cards") that indicate that they work with the Service. Once purchased, you may either use these Cards to download content from the Service or you may provide these Cards to others as a gift so they may download content from the Service. Cards are valid for the value communicated with the Card. Please note that Cards sold in retail stores must be activated at the retail store register. Cards will not work with the Service unless they are properly activated. Be sure to review all terms and conditions and disclosures messaged with a Card before you purchase a Card. Please note that if you provide a Card to an individual that resides outside of the Territory, or is otherwise unable to comply with or agree to these Terms of Service, that individual will not be able to use the Card on the Service. Cards are subject to all terms and conditions messaged with the Cards in retail, all terms and conditions that are provided with the Card and any other applicable terms and conditions that may be provided through the Service. Cards purchased in a particular territory may only be used to download content through the Service operating within the applicable territory.
6.3 Additional Terms. If you have purchased or hold a Card that you have purchased, please review all terms and conditions and minimum system requirements provided with that Card and/or posted online.
7. Restrictions. Your use of the Service and the Software are subject to the following restrictions:
7.1 Company Rules and Policies. You agree to abide by the rules and policies established from time to time by the Company in these Terms of Service. Such rules and policies will be applied generally in a nondiscriminatory manner to all end users of the Service and the Software, and may include, for example, required or automated updates, modifications and reinstallations of the Software, and obtaining available patches to, among other reasons, address security, interoperability, and/or performance issues. These updates, modifications and the like may occur on a periodic or as needed basis without notice to you. In addition, you understand that certain aspects of the Service are capable of monitoring itself and may create a unique system identification for security-related and tamper-detection purposes. Your copy of the Software and your access to certain applications that communicate with it are subject to restriction for security purposes or according to consistently applied OpenEnglish Content-protection policies. You understand and agree that this would likely result in OpenEnglish Content that was previously available for use being unavailable thereafter.
7.2 Territory. Subject to restrictions on payment, DVD-formats (e.g., region 1, 2 etc.) and other similar restrictions, each of which are described elsewhere, and limitations beyond our control (e.g., governmentally-imposed restrictions), the Service is currently made available anywhere the world-wide-web is accessible by you (the "Territory"). You understand and acknowledge that you may not sign up for, access, or attempt to access or use the Software or the Service from outside of the Territory. By installing, copying, otherwise using or continuing to use the Service or the Software, and by accepting or using any Software updates (including automatic updates), you represent, covenant and agree that you reside in the region you have provided in your Profile at all times while you maintain an OpenEnglish Account.
7.3 Age Requirement. You must be at least 18 years of age to agree to and accept these Terms of Service on your own behalf. If you are under 18 years of age, your parent or legal guardian must accept these Terms of Service and register for the Service on your behalf. In compliance with the Children's Online Privacy Protection Act ("COPPA"), as such may be amended from time to time, if you are under the age of 13, you are asked not to provide any information to the Company, whether by using the Service, participating in or entering any promotions, contests or sweepstakes related to the Service, or through any other activity.
7.4 Prohibited Conduct. You may not use the Service or the Software to transmit, display, perform or otherwise make available any messages, content or materials (i) that are illegal, obscene, threatening, of a "spamming" nature, defamatory, or invasive of privacy; (ii) so as to violate or infringe any copyrights, trademarks, patents, trade secrets, other intellectual property rights, privacy or publicity rights, communications regulations or statutes, or any other laws, including without limitation laws concerning defamation, harassment, obscenity, or pornography; (iii) that constitute political campaigning or commercial solicitation or that contain software viruses or other computer code designed to interfere with the functionality of any computer systems; or (iv) that harms minors in any way. You may not interfere with or disrupt the Service, any networks connected to or by the Service, or the Software. You agree not to interrupt or attempt to interrupt the operation of the Software or the Service in any way. In addition, you may not use a false email address or otherwise mislead other members as to your identity or to the origin of a message or content.
7.5 Restriction on Use Related to the Service. Because the Service includes security components, special rules and policies apply. You may not attempt (or support others' attempts) to circumvent, reverse engineer, decrypt, decompile, disassemble, or otherwise alter, tamper or interfere with any aspect of the Service. You may not distribute, exchange, modify, sell or re-sell, or transmit to any other person any part of the Service, including, but not limited to, any text, images or audio, for any business, commercial or public purpose. You agree not to copy, sell, distribute or otherwise transfer OpenEnglish Content other than solely for personal use.
7.6 Restriction on Use Related to OpenEnglish Account. You may only open an OpenEnglish Account for yourself, and not for any other person, subject to the provisions of the section above entitled "Age Requirement". You agree that you will not allow others to use your Registration Information and/or OpenEnglish Account and agree that you are solely responsible for maintaining the confidentiality and security of the same. You agree to notify the Company immediately of any unauthorized use of your password and/or OpenEnglish Account by emailing us at info@openenglish.com.
7.7 Restriction on Use Related to OpenEnglish Content. The license granted to you hereunder does not convey to you any of the following: (a) reproduction or promotional use rights in the OpenEnglish Content, (b) rights to enter into arrangements with any revenue-generating broadcast system (terrestrial, satellite, cable and/or other distribution channels), (c) rights to distribute or redistribute OpenEnglish Content on streaming applications (via Internet, intranets and/or other networks), (d) rights to distribute to others OpenEnglish Content on other content distribution systems (pay-audio or audio-on-demand applications and the like) or on physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like), or (e) commercial, sale, resale, reproduction, distribution or promotional use rights for the OpenEnglish Content. Any digital rights management solution that is provided with OpenEnglish Content is an inseparable part. If you have OpenEnglish Content, it is your responsibility not to lose, destroy or damage such OpenEnglish Content.
7.8 Restriction on Use Related to the Software. You agree you will not, either directly or indirectly: (i) rent, lease, loan, sell, assign, sublicense, copy, or distribute the Software in whole or in part; (ii) use the Software or any portion thereof to create any tool or software product that can be used to create software applications of any nature whatsoever; (iii) remove, alter, cover, obfuscate, and/or otherwise deface any trademarks or notices on the Software; (iv) disclose, divulge or otherwise make available the Software, including without limitation any portion or source code thereof, to any third party; and/or (v) modify, alter, duplicate, reproduce, copy, disassemble, reverse engineer, circumvent or emulate the functionality, decompile or otherwise reduce to human readable form, tamper with, or create derivative works from or of the Software, any of the security components of the Software, special rules, or other protection applications for any reason whatsoever, without the prior written consent of the Company or its licensors, as applicable. The Software specifications may be subject to change without notice. You may not use the Software over an internal network or distribute the Software to other computers over an internal network.
7.9 U.S. Government Restricted Rights and Export Provisions. The Software is "commercial computer software" or "commercial computer software documentation." The U.S. Government's rights with respect to the Software are limited by the terms of this Terms of Service, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1(a), as applicable. You agree by installing, copying, or otherwise using the Software and the Service that: (i) you do not reside in a country subject to embargo or export controls by the U.S. Government; (ii) you are not on the List of Denied Persons as published by the U.S. government; and (iii) you will not use the Software or the Service for any illegal purpose. Because the Software, the Service, and related technical data are subject to U.S. export controls, you agree that you shall not upload, export or "re-export" (transfer) the Software or the Service unless you have complied with all applicable U.S. export controls.
8. Charges and Billing.
8.1 Agreement to Pay. New subscribers to the Service will be required to have become members of OpenEnglish prior to completing the subscription application, and will be directed to PayPal® where a valid credit card number (Visa, MasterCard or American Express) will be required. You agree to pay for all OpenEnglish Content that is not obtained by means of a Promotional Code, Card or which is not offered to you by the Company for free.
8.2 Automatic Renewals. Your Monthly Service subscription(s) will be automatically renewed on a monthly basis. Your subscription(s) will automatically renew for successive monthly subscriptions, without prior notice to you, until you cancel your subscription or we terminate it.
8.3 Cancellation; Termination. To cancel your service, please send an email to: cancel@openenglish.com using the email address and password associated with your OpenEnglish account you wish to cancel. Cancellation requests must be prior to the end of the then current monthly renewal period to avoid incurring charges for the next monthly subscription period. We do not provide refunds or credits for any partial monthly subscription periods. The Company reserves the right to terminate your OpenEnglish Account and/or your access to the Service for violation of the Terms of Service. Should your OpenEnglish membership and subscription(s) to the Service be terminated, all fees and charges are nonrefundable.
8.4 Credit Card Transactions. You may be asked during your registration process to provide your credit card information. As a monthly subscriber to the Service, you agree that your PayPal® account will be debited or the credit card given will be charged, the applicable monthly subscription fee, any applicable sales tax and any other charges you may incur in connection with your use of the Service. Each subscription fee will be billed at the beginning of your subscription(s) and on each thirty-day renewal period thereafter (each a monthly renewal) unless and until you cancel. All fees and charges are nonrefundable. In the event you use your credit card to make purchases on the Service, we may, in our discretion, post charges to your credit card individually or may aggregate your charges with other purchases you make on the Service. You are responsible for keeping your OpenEnglish Account confidential and you will be responsible for any charges that are incurred by any person through your OpenEnglish Account. All charges will be billed to the credit card you designate when you first make a purchase or incur a charge on the Service. If any of your billing information changes, you must update that information by contacting info@openenglish.com or changing your OpenEnglish Account information online on the Service. By providing your credit card information to the Company, you are acknowledging and agreeing that we may keep your credit card information on file until your OpenEnglish Account is closed and as stated in the Privacy Policy, unless you make a request to OpenEnglish Customer Support that your credit card information be removed, in which case it will be removed as stated in the Privacy Policy. By providing your credit card information to the Company, you agree that you will consult the terms and conditions that are imposed by your credit card issuer for notification requirements and limitations on your liability for loss, theft or unauthorized use of your credit card. You agree that you, and not FoxyP2 Inc. or its affiliates, will be solely responsible for the payment of all amounts billed to your credit card by unauthorized third parties. You agree that you will not provide any credit card information for any credit card that is not issued in your name.
8.5 Taxes. Purchases from the Service may include sales tax (where applicable) and such tax will be based on the best available address information. In such cases, the sales tax rate in effect at the time purchases are made on the Service will apply. If the applicable sales tax rate changes before the applicable purchase have been completed, the new tax rate, effective at the time of completion of purchase on the Service, will apply. Other product and service limitations and disclaimers may apply.
8.6 Refund Policy. Subject to any free trial that we may offer from time-to-time, any refunds after a purchase is made on the Service are subject to our sole and absolute discretion.
8.7 Right to Change Prices. All prices related to the Service are subject to change by the Company at any time, without notice and without liability to you. The Company does not provide price protection or refunds in the event of a price drop or a promotional offering.
9. Special Notices. As a user of the Software and the Service, please note the following:
9.1 Privacy. By installing and activating the Software and registering on the Service, you consent to the collection and processing of all information related to your use of the Software and the Service, including Registration Information. This information is collected by the Company and handled pursuant to the terms of the Privacy Policy, which is expressly made a part of these Terms of Service by this reference. By agreeing to these Terms of Service, you are also agreeing to the Privacy Policy. A copy of the Privacy Policy is located here.
9.2 Accuracy of Information. You represent and warrant that all information (including Registration Information and responses to polls and surveys) you provide to OpenEnglish is correct, complete, and current, and you agree to update such information as necessary. You also agree that any information provided by you to OpenEnglish will not violate any law or regulation or infringe the rights of any third party.
9.3 Certification of Residency and Capacity to Contract. By opening an OpenEnglish Account, you represent and warrant to the Company that you reside in the territory you have specified in your profile and that you are capable of entering a contract under the laws of your jurisdiction.
9.4 Nature of Content. You understand that by using the Service and accessing the OpenEnglish Content, you may encounter materials that you may find to be explicit, offensive, or otherwise objectionable. The Company may include, if available, information related to ratings, content type, and descriptions, if such information is provided by the applicable owners of OpenEnglish Content. However, the Company is not responsible for the accuracy of any such information. You agree to the following, irrespective of whether or not the Service includes parental control functions, and irrespective of the extent to which you use such parental control functions: (a) it is your responsibility to determine which OpenEnglish Content meets your standards; and (b) under no circumstances will the Company or its affiliates or content delivery providers be liable in any way for any OpenEnglish Content to which you have access. Nevertheless, you agree to use the Service at your sole risk and that the OpenEnglish Entities shall have no liability to you for any content contained on the Service.
9.5 Risk of Use. Neither the Company nor its affiliates shall assume no responsibility and shall not be liable for any damages to, or viruses that may damage your computer equipment or other property on account of your access to, use of, downloading, or browsing the Service or the Software.
9.6 Links from Other Web Sites to Third Party Sites; RSS Feeds. The Company is not responsible for the content or availability of any RSS Feeds or web sites linked to the Service or any third-party web sites which are linked to or from the Service. Your accessing RSS Feeds or linking to other web sites is entirely at your own risk. Any RSS Feeds or links are provided for your convenience only and should not be interpreted as an endorsement of the owner/sponsor of the web site. The Company disclaims all warranties, express or implied, as to the accuracy, quality, or otherwise of any materials or information contained on such RSS Feeds and web sites.
9.7 Action for Violation of Intellectual Property Rights. If the Company receives a notice alleging that you have engaged in behavior that infringes any of the Company or its affiliates or a third party's intellectual property rights or reasonably suspects the same, the Company may suspend or terminate your access to the Service without notice to you. If the Company takes action under this Section, it shall have no liability or responsibility to you, including for any amounts that you have previously paid or any credits that you have on the Service.
9.8 The Company’s Right to Change These Terms of Service. The Company reserves the right to modify, add to, change or remove any part of these Terms of Service at any time, with or without notice. You should therefore periodically visit this page, by clicking on the hyperlink entitled "Terms of Service" at the bottom of the Service homepage to review the then-current Terms of Service. In case of any material change to these Terms of Service, we will replace the "Terms of Service" link on the bottom of the Service homepage with a link entitled "Terms of Service Updated XX/XX/XXXX" for no less than 30 days. All changes to these Terms of Service will be effective when posted, and your continued use of the Service, the Software, or any updates to the Software after the posting will constitute acceptance of, and agreement to be bound by, those changes. You may provide notice to the Company of any objection to such revised terms within thirty (30) days after they are posted; please send any such objection by email to info@openenglish.com. If you do not agree to (or cannot comply with) these Terms of Service as amended, your sole remedy is to stop using the Service and the Software.
9.9 The Company’s Right to Make Changes to the Service and the Software. The Company may add, change, discontinue, remove, or suspend any materials incorporated into the Service and the Software, including features, prices and specifications of products described or depicted on the Service and on the Software, temporarily or permanently, at any time, without notice and without liability. In addition, the Company and/or the owners of the OpenEnglish Content may, from time to time, remove OpenEnglish Content from the Service without notice, and the Company may at any time lose the right to make certain OpenEnglish Content available. In such event, you will no longer be able to obtain or view certain OpenEnglish Content.
9.10 Delivery of OpenEnglish Content. On occasion, technical problems may delay or prevent delivery to you of OpenEnglish Content or the Service. In such an instance, your sole remedy will be either replacement of such OpenEnglish Content or refund of the price paid for such OpenEnglish Content, if applicable, at the Company’s discretion. Refunds are not available for OpenEnglish Content obtained through a promotional offering unless expressly indicated otherwise.
9.11 The Company’s Rights to Your Postings. By posting messages, reviews, inputting data, or engaging in any other form of communication through the Service (if so permitted by the Company), you represent that you have all the rights to make such posting, that such posting does not infringe the rights of any third party, and you agree that the Company may copy, sublicense, adapt, transmit, publicly perform or display any such content to provide and/or promote the Service and/or to respond to any legal requirement, claim or threat. If the Company’s use of such content exploits any proprietary rights you may have in such material, you agree that the Company has an unrestricted, royalty-free, non-exclusive and perpetual worldwide right do so. You agree that any loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.
10. Intellectual Property.
10.1 Trade Secrets and Proprietary Materials. The Software and the Service contain and/or embody copyrighted material, trade secrets, patented (and/or patent pending) inventions and/or other proprietary material and intellectual property of the Company and/or its licensors. All title and ownership rights in the Software and the Service remains with the Company and its licensors, as applicable. You agree to keep information contained in the Software and the Service which is not publicly known confidential to yourself, and not to disclose such information to others without the Company's prior written approval.
10.2 Copyright. The Software is protected by applicable copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. All title and copyright in and to the Software (including but not limited to any images, photographs, animation, video, audio, music, text and "applets", incorporated into the Software), and any copies of the Software, are owned by the Company or its licensors. You agree to comply with all applicable copyright protection laws in connection with your use of the Service, the OpenEnglish Content and the Software. In addition to the terms provided in this Terms of Service, the Company may take appropriate measures to protect copyright of the contents played by the Software.
10.3 Trademarks. You cannot use any of the trademarks or protected copyright materials found on and within the Software and the Service except as specified herein and in accordance with applicable law. You may not copy, display or use any of the trademarks or protected copyright materials without prior written permission of the owner. Any unauthorized use may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil or criminal statutes. The trademarks listed below are trademarks of the Company, its direct or indirect parents, and/or its affiliates, licensors, or third party owners. Nothing contained on the Software or on the Service should be construed as granting by estoppel or otherwise, any license or right of use to any trademark. Please note that the trademark list below is periodically updated such that neither this list nor its updates are all-inclusive lists of the trademarks. For questions pertaining to any of the trademarks or the below trademark list, please send inquiries to FoxyP2 Inc. ATTN: Business and Legal Affairs, 333 Washington Blvd Suite #115, Marina Del Rey, California, 90292. OpenEnglish, the "OpenEnglish" logo, OpenEnglish Cash and other Trademarks used on the Service are the trademarks of their respective owners. The following are licensed by the Company from third parties with special attribution requirements. This list is not an all-inclusive list: Intel Inside and Pentium.
11. Standard Terms.
11.1 Remedies. You agree that any unauthorized use of the Service, the Software, and any technology contained therein would result in irreparable injury to the Company for which money damages would be inadequate. Therefore, in such event, the Company shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you and to prevent any unauthorized use. Nothing contained in this Section or elsewhere in these Terms of Service shall be construed to limit remedies available pursuant to statutory or other claims that the Company may have under separate legal authority. You understand and agree that your cancellation of your OpenEnglish Account is your sole right and remedy with respect to any dispute with the Company.
11.2 Indemnification. You agree that you will defend, indemnify and hold harmless the Company against any and all claims, losses, damages, liabilities, deficiencies, judgments, assessments, fines, costs and other expenses (including reasonable attorneys' fees) arising from or relating to your use of the Service, the Software, or any breach by you of these Terms of Service, and you agree to reimburse the Company on demand for any losses, costs or expenses they incur therefrom.
11.3 Term; Termination. The term of these Terms of Service shall remain in effect until terminated as provided herein. These Terms of Service and your rights to access, download and use the Service and the Software are subject to immediate termination, without notice, (a) if you breach (or the Company reasonably suspects that you have breached) any provision of these Terms of Service, or (b) upon the Company’s discontinuation of its dissemination or support of the Service or the Software. If such termination without notice is expressly prohibited by applicable law, then such termination will occur upon notice of any such breach. Upon termination, you must cease all use of the Service and the Software. If the Company terminates these Terms of Service, or suspends your OpenEnglish Account for any of the reasons set forth in these Terms of Service, the Company shall have no liability or responsibility to you, and the Company will not refund any amounts that you have previously paid.
11.4 DISCLAIMERS; LIMITATION OF LIABILITY.
11.4.1 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND SOFTWARE IS AT YOUR OWN SOLE RISK. THE SERVICE AND THE SOFTWARE ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND BY THE COMPANY OR ITS AFFILIATES, AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THE COMPANY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE AND THE SOFTWARE WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD THE COMPANY NOR ITS AFFILIATES RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICE OR USING THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR REGISTERED PORTABLE DEVICES YOU USE TO ACCESS THE SAME. SHOULD THE SOFTWARE PROVE DEFECTIVE YOU (AND NOT THE COMPANY NOR ITS AFFILIATES) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, CORRECTION OR REPLACEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO THE COMPANY NOR ITS AFFILIATES.
11.4.2 THE COMPANY MAKES NO WARRANTY THAT ANY PARTICULAR PERSONAL COMPUTER, CD OR DVD PLAYER, CD OR DVD BURNER OR REGISTERED PORTABLE DEVICE WILL BE COMPATIBLE WITH THE SERVICE OR THE SOFTWARE OR THAT ANY CD OR DVD BURNED USING THE SERVICE OR THE SOFTWARE WILL FUNCTION IN ANY SPECIFIC MODEL OF CD OR DVDPLAYER. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR SYSTEMS WILL FUNCTION CORRECTLY WITH THE SERVICE AND THE SOFTWARE.
11.4.3 THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE WITH RESPECT TO ITS PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO THE COMPANY AND/OR ANY AFFILIATE. THE EXCLUSION OF IMPLIED WARRANTIES MAY NOT BE PERMITTED BY SOME JURISDICTIONS AND THUS, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
11.4.4 THE SERVICE MAY CONTAIN VIEWS, ADVICE, STATEMENTS AND OPINIONS, WHICH REPRESENT THE VIEWS, ADVICE, OPINIONS AND STATEMENTS OF THE INDIVIDUAL AUTHORS AND NOT NECESSARILY THOSE OF ANY COMPANY AFFILIATE. THE COMPANY DOES NOT REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY VIEW, ADVICE, OPINION, STATEMENT OR OTHER INFORMATION PROVIDED BY SUCH AUTHORS. SUCH VIEWS, OPINIONS, ADVICE, STATEMENTS OR OTHER INFORMATION ARE SOLELY THOSE OF THE AUTHORS AND CANNOT BE ATTRIBUTED TO THE COMPANY OR ITS AFFILIATES. RELIANCE UPON SUCH VIEWS, OPINION, ADVICE, STATEMENT OR OTHER INFORMATION SHALL ALSO BE AT YOUR OWN RISK. THE COMPANY SHALL NOT BE LIABLE TO ANYONE FOR ANY INACCURACY, ERROR, OMISSION, INTERRUPTION, TIMELINESS, INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, COMPLETENESS, DELETION, DEFECT, FAILURE OF PERFORMANCE, COMMUNICATION LINE FAILURE, ALTERATION OR USE OF THE AUTHOR'S WORKS, REGARDLESS OF CAUSE, FOR ANY DAMAGES RESULTING THEREFROM. THE COMPANY ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY DAMAGE YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE AUTHOR'S MATERIALS.
11.4.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, LOST PROFITS, HOWEVER CAUSED, ARISING FROM OR RELATING TO THE SERVICE, THE SOFTWARE, THESE TERMS OF SERVICE OR THE SUBJECT MATTER OF ANY OF THE FOREGOING, UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO (1) DAMAGES ARISING FROM LOSS OF DATA, LOSS OF REVENUE, LOSS OF USE OF THE SOFTWARE AND ANY DOWNLOADS OR ANY ASSOCIATED EQUIPMENT, DOWN TIME AND USER'S TIME, EVEN IF THE COMPANY OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (2) DAMAGES ARISING FROM YOUR USE OF THE SERVICE OR THE SOFTWARE IN VIOLATION OF THESE TERMS OF SERVICE, INCLUDING THE LIMITATIONS ON USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE COMPANY SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW AND IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED US$10.
11.4.6 YOU ALSO ACKNOWLEDGE TO AND FOR THE BENEFIT OF THE COMPANY THAT THE SOFTWARE, AS WITH MOST SOFTWARE, MAY CONTAIN BUGS AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, PHYSICAL OR ENVIRONMENTAL DAMAGE OR FINANCIAL LOSS. THE COMPANY AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS SUFFERED AS A RESULT OF SUCH A FAILURE OF THE SOFTWARE OR A BREACH OF SECURITY INVOLVING THE SOFTWARE, WHETHER OR NOT SUCH LOSS OR BREACH RESULTS FROM THE DELIBERATE, RECKLESS, OR NEGLIGENT ACTS OF ANY PERSON OR MAY HAVE BEEN FORESEEABLE.
11.4.7 UNDER NO CIRCUMSTANCES SHALL THE COMPANY NOR ITS AFFILIATES BE LIABLE FOR ANY UNAUTHORIZED USE OF ANY CONTENT, OR ANY USE OF THE SERVICE OR SOFTWARE TO DEVELOP, DISTRIBUTE, OR USE ANY MATERIAL THAT IS DEFAMATORY, SLANDEROUS, LIBELOUS OR OBSCENE, THAT PORTRAYS ANY PERSON IN A FALSE LIGHT, THAT CONSTITUTES AN INVASION OF ANY RIGHT TO PRIVACY OR AN INFRINGEMENT OF ANY RIGHT TO PUBLICITY, THAT VIOLATES OR INFRINGES ANY THIRD PARTY'S RIGHTS OR THAT VIOLATES ANY FOREIGN, FEDERAL, STATE OR LOCAL STATUTE OR REGULATION.
11.5 Choice of Law and Venue. These Terms of Service and your use of the Service and the Software will be governed by the laws of the state of California excluding (i) conflict of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. You agree that any claim or dispute with the Company or any affiliate or arising out of or relating to these Terms of Service, the Service or the Software, or your use of any of the foregoing will be brought in an appropriate state or federal court located in Los Angeles, California. You agree to submit to the exclusive jurisdiction and venue of these courts and waive any jurisdictional, venue or inconvenient forum objections to such courts. THE PARTIES SHALL NOT RAISE IN CONNECTION THEREWITH, AND HEREBY WAIVE, TRIAL BY JURY AND/OR ANY DEFENSES BASED UPON THE VENUE, THE INCONVENIENCE OF THE FORUM, THE LACK OF PERSONAL JURISDICTION, THE SUFFICIENCY OF SERVICE OF PROCESS OR THE LIKE IN ANY SUCH ACTION OR SUIT. To the extent permitted by law, the provisions of these Terms of Service shall supersede any provisions of the Uniform Commercial Code and the Uniform Computer Information Transactions Act as adopted or made applicable to the Software in any competent jurisdiction.
11.6 Entire Agreement and Severability. These Terms of Service and the Privacy Policy incorporated herein (and any amendment or revision by the Company to either) together constitute the entire agreement between you and the Company with respect to its subject matter and supersedes all prior and/or contemporaneous agreements and understandings, written or oral, between you and the Company with respect to the subject matter hereof. Except as expressly set forth herein, these Terms of Service may not be amended, modified, or supplemented by the parties in any manner, except by a written instrument signed by an authorized officer of the Company. If any part of these Terms of Service is found invalid or unenforceable by a court of competent jurisdiction, the remainder of these Terms of Service will be interpreted so as to reasonably affect the intention of the parties. Headings are for reference purpose only and in no way define, limit, construe or describe the scope or content or extent of such section. No provision hereof shall be deemed waived (by any act or omission) unless such waiver is in a writing signed by an authorized officer of the Company. These Terms of Service will bind and inure to the benefit of each party's successors and assigns, provided that you may not assign or transfer these Terms of Service, in whole or in part, without the prior written consent of an authorized officer of the Company.
11.7 Subsequent Owner of the Service; Company Merger/Acquisition. By using the Service, you agree that the Company or one of its companies may at the time of a merger, acquisition, or sale of the Service or all or substantially all of the Company’s assets assign its rights and obligations regarding the Service to an applicable subsequent owner or operator. In the event of such a merger, acquisition, or sale, your continued use of the Service signifies your agreement to be bound by the Terms of Service and privacy policy of the subsequent owner or operator of the Service.
11.8 Survival. The paragraphs of these Terms of Service entitled "Indemnification", "Limitation of Liability", "Choice of Law And Venue", "Charges and Billing", "Company’s Rights to Your Postings", "Remedies", and "Disclaimers" will survive its termination.
12. Definitions.
"Affiliates" means the Company and its direct and indirect parents, agents, employees, licensors, distributors, business partners, suppliers and affiliates (and each of the foregoing entities' respective officers, directors, employees and agents).
"Client Software" means any Company software application, including management functionality for the Service.
"OpenEnglish Account" means a user account registered with the Service.
"OpenEnglish Content" means the music, images, text and other material that may be obtained by you in digital form from the Service, which content is owned by the Company or third party licensors.
"Privacy Policy" means the Company Privacy Policy, a copy of which may be viewed by clicking on the link at the bottom of the Service homepage, and which may be amended, modified, or revised from time to time by the Company as stated in the terms of the Privacy Policy which is can be found here.
"Registration Information" means the information provided by you to the Company or the Service when you register for an OpenEnglish Account and during the installation process which may be provided in order to use the Service (including a unique member (user) name, a password and your valid email address).
13. Questions. If you have any questions or comments about these Terms of Service, please feel free to write us at:
OpenEnglish Business & Legal Affairs
FoxyP2 Inc.
333 Washington Blvd Suite #115
Marina Del Rey, CA 90292
Any rights not expressly granted herein are reserved.