Effective Date: January 5th, 2006
Last Updated: June 30th, 2017
1. About the Terms of Service Generally.
1.1 For your convenience these Terms are available in both English and Spanish, but in the event of a conflict the English version shall be definitive.
1.2 Terms that are capitalized are defined either in the body of these Terms of Service or at Section 10.
1.3 The Company owns and operates the Open English website available through www.openenglish.com (the “website”). We offer you the ability via our courses to learn English online through our online services and website functionality and offline through downloads that may be available via the website (collectively, the “Service”). The Service includes the “Open English” and “Open English Junior” course offered by the Company (the “Course”), among others academic services that may be available from time to time on the website.
1.4 Below is a short summary of certain terms and conditions that are included in these Terms of Service. However, this summary is provided for convenience only, and you should read the entire Terms of Service before agreeing to these Terms of Service.
2. Permission to Use the Service; Reservation of Rights.
By accepting these Terms of Service, you are granted a non-exclusive, non-transferable, non-sub licensable, limited right to enter, access, and use the Service solely for personal, non-commercial 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 permission is for your personal, non-commercial use and that no one other than you will use the Service. You have no rights to copy or reproduce all or any portion of the Services, including but not limited to the Open English Content. Other than the limited license granted in this Section 2, you have no other right, title or interest in the Service. You understand and acknowledge that in all circumstances your rights with respect to the Service will be limited by copyright or applicable intellectual property laws and these Terms of Service.
3. Description of the Service.
3.1.1 Your Account and Registration Information. You may browse, preview, and search within the Service without opening an Open English Account or providing Registration Information. However, to otherwise use the Service and access Open English Content, you must open an Open English Account and provide Registration Information to the Company.
3.1.2 Accessing Open English Content. Ownership of Open English Content is further described in Section 8 (Intellectual Property) of these Terms of Service. You may access Open English Content an unlimited number of times as long as you have subscribed to the Service. You are also permitted to transfer the Open English podcasts to certain portable devices for personal, non-commercial use. You may also burn Open English podcasts onto CDs or DVDs for personal, non-commercial use; however, once you have transferred and/or burned Open English Content to such media, you agree not to further copy, reproduce, distribute, or transfer it to any other media or device, or to distribute or transfer it to any other person or third party. Any burning or transferring capabilities of Open English Content are 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 Open English Content, including any musical composition therein.
3.1.3 Additional Software and Hardware Terms. 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 that may interact with the Service. Your failure to accept the terms of those agreements may limit your ability to fully use the Service. Additionally, the Service only work with compatible devices.
4.1 Promotions The Company, other Open Education LLC entities and certain third parties may from time-to-time place advertisements or present promotional offers and materials on or through 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. YOU AGREE THAT THE COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SERVICE.
5. Restrictions. Your use of the Service is subject to the following restrictions:
5.1 Company Rules and Policies. When using the Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All Guidelines are hereby incorporated by reference into these Terms of Service. Such Guidelines will be applied generally in a nondiscriminatory manner to all end users of the Service and may include, for example, required or automated updates, modifications and reinstallations of 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 themselves and may create a unique system identification for security-related and tamper-detection purposes. Your access to certain applications is subject to restriction for security purposes or according to consistently applied Open English Content-protection policies. You understand and agree that this would likely result in Open English Content that was previously available for use being unavailable thereafter.
5.2 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.
Treated in some cases, a person under age who voluntarily seeks to engage in any commercial or advertising pattern of the mark and if there is a local regulation on Children’s Online Privacy in some legislation in the world said intended where conduct, it is waived that provision and must be adjusted requirements and restrictions in the event the need arises, in accordance with the law and the integrity of the parties involved.
5.3 Prohibited Conduct. You may not use the Service 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 harm minors in any way. You may not interfere with or disrupt the Service, any networks connected to or by the Service. You agree not to interrupt or attempt to interrupt the operation or the Service in any way. Students are expected to conduct themselves in a respectful manner during all Courses, mindful of the standards of higher education and career advancement for others. Any violations will be subject to review and appropriate action by the Company, at its sole discretion, up to and including the Company exercising its rights under Section 9.3 to terminate Services. 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.
5.4 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 Open English Content other than as expressly permitted herein.
5.5 Security Restriction on Use Related to Open English Account. You may only open an Open English 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 Open English 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 Open English Account by calling us to the phone number that appears in our website www.openenglish.com, or by means of the “Contact Us” link in your learning platform. If you are using or opening an account on the Service on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then you represent and warrant that you: are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms of Service; and agree to be bound by these Terms of Service on behalf of such Subscribing Organization.
5.6 Restriction on Use Related to Open English Content. Except as expressly permitted herein, the rights granted to you hereunder do not convey to you any of the following: (a) reproduction or promotional use rights in the Open English 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 Open English Content on streaming applications (via Internet, intranets and/or other networks), (d) rights to distribute to others Open English 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 Open English Content. Any digital rights management solution that is provided with Open English Content is an inseparable part thereof, and may not be circumvented except to the extent permitted under applicable law. If you are in possession or control of Open English Content, it is your responsibility not to lose, destroy or damage such Open English Content.
6. Charges and Billing.
6.1 Agreement to Pay. All users of the Service must first agree to these Terms of Service and complete a payment authorization, and a Purchase Terms and Conditions (“Purchase Terms”). You agree to pay for all Open English Content that is not obtained by means of a promotional code or which is not offered to you by the Company for free.
6.2 Refund Policy. After seven (7) days from the purchase date of the Course, payments are non-refundable. Any refunds that Company should be made in your benefit, will be accredited on the credit card or payment instrument you designate when you first make a purchase or incur a charge on the Service in accordance to the Section 6.4 of this Agreement.
6.3 Termination. The Company reserves the right to terminate your Open English Account and/or your access to the Service for violation of the Terms of Service. Should your Open English membership and subscription(s) to the Service be terminated, all fees and charges are nonrefundable.
6.5 Taxes. Purchases from the Service may include sales tax or value added tax (where applicable) and such tax will be based on the best available address information. In such cases, the 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 purchases 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. You will be solely responsible for paying all such taxes.
6.6 Right to Change Prices. TAll 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.
7. Special Notices. As a user of the Service, please note the following:
7.2 Accuracy of Information. You represent and warrant that all information (including Registration Information and responses to polls and surveys) you provide to the Company is correct, complete, and current, and you agree to update such information as necessary. You also agree that any information provided by you to the Company will not violate any law or regulation or infringe the rights of any third party.
7.3 Certification of Residency and Capacity to Contract. By opening an Open English 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.
7.4 Nature of Content. You understand that by using the Service and accessing the Open English 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 Open English 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 Open English Content or materials found on the Service meet your standards; and (b) under no circumstances will the Company or its Affiliates or content delivery providers be liable in any way for any Open English Content or materials to which you have access. You agree to use the Service at your sole risk and that Company and its Affiliates shall have no liability to you for any content or materials contained on the Service.
7.5 Risk of Use. Neither the Company nor its Affiliates shall assume any 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 from, or browsing the Service.
7.6 Links from Other Websites 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.
7.7 The Company’s Right to Change these Terms of Service. The Company reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms of Service at any time without notice to you. All changes shall be effective immediately. In the event of a material change, we will use commercially reasonable efforts to notify you and obtain your consent before implementing such changes. Please check these Terms of Service periodically for changes. Your continued use of the Service after the posting of changes constitutes your binding acceptance of such changes.
7.8 The Company’s Right to Make Changes to the Service. The Company may add, change, discontinue, remove, or suspend any materials incorporated into the Service, including features, prices and specifications of products described or depicted on the Service, temporarily or permanently, at any time, without notice and without liability. In addition, the Company and/or the owners of the Open English Content may, from time to time, remove Open English Content from the Service without notice, and the Company may at any time lose the right to make certain Open English Content available. In such event, you will no longer be able to obtain or view certain Open English Content.
8. Intellectual Property
8.1 Trade Secrets and Proprietary Materials The Service contains and/or embodies 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 Service, including but not limited to all Open English Content and any and all copies of the Service and the Open English Content, remain with the Company and its licensors, as applicable. You agree to keep information contained in 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.
Students are not allowed to try to reconfigure, descramble or reverse engineer the Open English website, Service and/or Open English Content.
8.2 Copyright. The Open English Content and other works of authorship found on, within, or as part of the Service (collectively “Content”) are protected by applicable copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Content is licensed, not sold. You cannot make unauthorized copies and use any of the Content except as specified herein and in accordance with applicable law. All title and copyright in and to the Content and Service (including but not limited to any derivative works or enhancements including images, illustrations, graphics, photographs, animation, video, audio, music, text, scripts, “applets”, files, URLs, documentation and interactive features included with or available through the Service), 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 and the Content. In addition to the terms provided in this Terms of Service, the Company may take appropriate measures to protect copyright in the Content.
8.3 Trademarks. You cannot use any of the trademarks found on or within the Service except as specified herein and in accordance with applicable law. You may not copy, display or use any of the trademarks without prior written permission of the owner. Any unauthorized use may violate 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 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 Open Education LLC, Attention: Business and Legal Affairs 2901 Florida Ave. Suite 840, Coconut Grove, Florida, 33133. Open English, the “Open English” name and logo, “English Highway” and other trademarks used on the Service are the trademarks of their respective owners.
8.4 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) or as part of Company’s official social networks, 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. Also it is solely your responsibility to monitor and protect any intellectual property rights that you may post in social networks including but not limited to messages, text, illustrations, data, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials. The Company will not have or accept any responsibility in your name.
8.5 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.
8.6 Digital Millennium Copyright Act Compliance. If you are a copyright owner or an agent thereof, and believe that any user postings or other non-Company materials infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (as listed below) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail): (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works from the Service; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Video Greetings to locate the material; (d) information reasonably sufficient to permit Video Greetings to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Company’s designated Copyright Agent to receive notifications of claimed infringement is: Alexander Sotelo, Chief Financial Officer, Open Education LLC Address: 2901 Florida Ave. Suite 840, Coconut Grove, Florida 33133 – USA.
9. Standard Terms.
9.1 Remedies. You agree that any unauthorized use of the Service 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 Open English Account is your sole right and remedy with respect to any dispute with the Company.
9.2 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, 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.
9.3 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 from, and use the Service 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. 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. If the Company terminates these Terms of Service, or suspends your Open English 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.
9.4 DISCLAIMERS; LIMITATION OF LIABILITY.
9.4.1 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS 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, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS, 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 INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR REGISTERED PORTABLE DEVICES YOU USE TO ACCESS THE SAME. THERE IS NO WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO EITHER THE COMPANY OR ITS AFFILIATES.
9.4.2 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. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR SYSTEMS WILL FUNCTION CORRECTLY WITH THE SERVICE; AND UNLESS WE SPECIFICALLY TELL YOU OTHERWISE, THE USE OF ANY COMPANY’S MOBILE APPLICATIONS IS LIMITED TO THE RELEVANT DEVICE AND/OR OPERATING SYSTEM SUITABLE TO ACCESS THE MOBILE APPLICATION. THE COMPANY DOES NOT ACCEPT ANY RESPONSIBILITY WHATSOEVER FOR UNAVAILABILITY OF THE APPLICATION, OR ANY DIFFICULTY OR INABILITY TO DOWNLOAD OR ACCESS CONTENT OR ANY OTHER COMMUNICATION SYSTEM FAILURE WHICH MAY RESULT IN THE MOBILE APPLICATION BEING UNAVAILABLE.
9.4.3 ETHE 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, OR 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.
9.4.4 EIN 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, 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 SERVICE AND ANY DOWNLOADS OR ANY ASSOCIATED EQUIPMENT, DOWN TIME AND USER’S TIME, EVEN IF THE COMPANY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (2) DAMAGES ARISING FROM YOUR USE OF THE SERVICE IN VIOLATION OF THESE TERMS OF SERVICE, INCLUDING THE LIMITATIONS ON USE. UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY UNAUTHORIZED USE OF ANY CONTENT, OR ANY USE OF THE SERVICE 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.
9.4.5 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. IN NO EVENT SHALL SUCH DAMAGES OR THE TOTAL AGGREGATE LIABILITY OF THE COMPANY EXCEED THE FEES PAID BY YOU IN THE PRECEDING 12 MONTHS OR $10, WHICHEVER IS GREATER.
9.5 Choice of Law and Venue. These Terms of Service and your use of the Service will be governed by the laws of the state of Florida 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 your use of any of the foregoing will be brought in an appropriate state or federal court located in Miami-Dade County, Florida. 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 Service in any competent jurisdiction.
9.8 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.
“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).
“Open English Account” means a user account registered with the Service.
“Open English Content” means the music, images, text and other material that may be obtained or accessed by you in digital form from the Service, which content is owned by the Company or third party licensors.
“Registration Information” means the information provided by you to the Company or the Service when you register for an Open English 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).
If you have any questions or comments about these Terms of Service, please feel free to call us at the number that appears on our website or send us an email to firstname.lastname@example.org.
Any rights not expressly granted herein are reserved.