TERMS AND CONDITIONS OF USE
THESE TERMS CONTAIN IMPORTANT DISCLAIMERS AND LEGAL INFORMATION
1. USER AGREEMENT
BY CHECKING THE "I ACCEPT THE TERMS AND CONDITIONS OF USE" BOX LOCATED BELOW, OR YOU OR YOUR CHILD ACCESSING OR USING ANY PART OF THE SITE OR ANY PROGRAM, YOU EXPRESSLY AGREE AND CONSENT TO BE BOUND BY THE AGREEMENTS. YOU UNDERSTAND THAT THESE TERMS AND THE AGREEMENTS APPLY TO YOUR CHILD’S USE OF THE SITE AND THE PROGRAMS, AND YOU AGREE TO BE LEGALLY RESPONSIBLE FOR SUCH USE. IF YOU DO NOT AGREE TO THE FOREGOING, YOU MAY NOT COMPLETE THE REGISTRATION FORM AND YOU AND YOUR CHILD MAY NOT ACCESS OR USE THE SITE OR ANY PROGRAM. PLEASE READ THIS AGREEMENT CAREFULLY AND SAVE IT.
2. REGISTRATION FOR SERVICES; ENROLLMENT FEE NON-REFUNDABLE
To become a “Registered User” of the Site, you must successfully complete the enrollment form located at http://www.emath360.com/enroll.html, pay the enrollment fee, and pay the applicable service price for each Program your child intends to use. Once submitted, the enrollment fee becomes the sole property of eMath360 and will not be refunded or returned for any reason. You agree to provide true, accurate, current, and complete information about you and your child as prompted during the registration process. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, eMath360 reserves the right to suspend and/or terminate the use of the Site and any Program by you and your child. As part of the registration process, you will be asked to select a user name and password for your child. eMath360 may refuse to grant a user name that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by eMath360 in its sole discretion. YOU AND YOUR CHILD ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF THE USER NAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
3. PAYMENT AND COLLECTION
Upon acceptance of the agreement as specified in section 1, you agree to pay for service until the service is terminated by the company or you provide a written notice of termination. EMath360 shall issue invoices to you at the address identified by you during registration with the Service. The service charges or fee is due on the 1st day of every month. A $20 late fee will be assessed on all accounts if the fee is not received by 15th day of the month. All accounts more than thirty (30) days past due will be charged the interest from the due date of the lesser of (i) 2% per month on the past due amount; or (ii) the highest rate permissible under applicable law for the actual number of days elapses. EMath360may elect to suspend, interrupt or terminate the Service on any account that is past due by more than thirty (30) calendar days until all payments then due are received. EMath360 reserves the right to terminate this Agreement in accordance with the Termination section at all times. In the event of suspension, you must remit full payment of the balance due to EMath360 in order to reactivate your account or service. If Client is delinquent in payments, EMath360 may, upon written notice to you, modify the payment terms to require full payment before the further provision of Services or require other assurances to secure your payment obligations hereunder. You are responsible for paying all costs of collection, including, but not limited to attorney’s fees and, where lawful, collection agency fees.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING USE OF THE PROGRAMS
You hereby represent that you are at least eighteen (18) years of age. In addition, each time your child participates in any Program offered on the Site, you represent and warrant that the information provided to eMath360 in connection with becoming a Registered User is true, accurate, current and complete. All such representations and warranties are relied upon by eMath360. By becoming a Registered User, you authorize eMath360 to make any and all inquiries as eMath360 in its sole discretion considers necessary to verify the information provided by you. eMath360 may require you to submit proof of age, identity and place of residence as it may require, at any time. eMath360 reserves the right to suspend and/or terminate the use of the Site and the Programs by you and your child where it has grounds to suspect that any of the information you have provided to eMath360 is untrue, inaccurate, not current or incomplete. You maintain the responsibility to promptly update all such information to keep it true, accurate, current and complete. For purposes of this Section 3, “eMath360” shall refer to, collectively, eMath360 and its subsidiaries, members and affiliated companies, agents, representatives, successors or assigns, and/or any other person, company or firm working or affiliated with eMath360 in any capacity.
5. USER PRIVACY
The Site may contain text, images, audiovisual productions, opinions, statements, facts, articles, or other information created by eMath360 or by third parties ("Content"). Such Content is for the reference of you and your child only and should not be relied upon by you or your child for any purpose. The Content may not be copied, duplicated, distributed, downloaded (unless as required in order to use a Program), sold or otherwise exploited by you or your child in any way, except as agreed to in writing by eMath360. eMath360 is not responsible for the Content's accuracy and reliability.
7. LINKS AND ADVERTISING
From time to time, the Site may contain hyperlinks ("Links") to third party Web sites and/or banner advertising and/or sponsorships operated by or referring to third parties and their goods and services ("Advertising"). Such Links and Advertising are for the reference of you and your child only, and eMath360 neither controls such linked Web sites or Advertising nor is eMath360 liable or responsible for their content. Display of such Links or Advertising on the Site does not imply or express any endorsement by eMath360 or any individuals or entities referred to in the Content on such linked Web sites, or of such eMath360 or Advertising, or any association with their operators. You may direct any comments or concerns regarding any such Links or Advertising on the Site to eMath360, as set forth below. You are solely responsible for any charges or obligations that may be incurred as a result of any dealings with such Web site operators or Advertisers. Other Web sites may also have a link to the Site posted on their Web site; you hereby acknowledge and agree that eMath360 is not responsible for the content of any such Web site or the actions of any operator of any such Web site.
8. COPYRIGHTS, TRADEMARKS AND SERVICE MARKS
The Site and all materials on the Site including, without limitation, software, images, text, graphics, illustrations, logos, photographs, audio, videos and music (the "Intellectual Property") are or may be protected under United States and worldwide copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws (collectively, “Intellectual Property Rights”) that are owned or licensed, in whole or in part, by eMath360 or otherwise used with permission of their respective owners. The Intellectual Property may not be manipulated, edited, reproduced, performed, republished, uploaded to or downloaded from, posted, transmitted, sold, transferred or otherwise distributed or exploited in any manner whatsoever from the Site or any other Web site owned or operated by eMath360 without its prior written consent, which may be withheld in eMath360’s sole discretion. Any manipulation of the Site or any portion thereof or any of the Intellectual Property, or use of any of the foregoing for any other purpose (except as necessary to use a Program on the Site) constitutes an infringement of eMath360’s or the respective third party owner’s Intellectual Property Rights. Any use of any portion of the Site (except as necessary to use a Program on the Site) or any Intellectual Property on any other Web site or other networked computer environment is prohibited without eMath360’s prior written consent, which may be withheld in eMath360’s sole discretion. You represent that you or your child is the sole author and proprietor of any information or ideas submitted to eMath360 by you or your Child, and that no information or ideas submitted by you or your child has been registered for copyright protection in any jurisdiction or has been previously published in any form.
9. USER INDEMNITY
You agree to defend, indemnify and hold harmless (each, an “eMath360 Party” and, collectively, the “eMath360 Parties”), (i) eMath360 and its subsidiaries and each of their officers, managers, agents, directors, members, affiliates, interest holders, stockholders, employees and content providers and (ii) each other person, company or firm (including but not limited to its parent and subsidiaries and each of their respective officers, managers, agents, directors, members, affiliates, interest holders, stockholders, employees and assigns) that has engaged eMath360 to operate, maintain or host any Program or is otherwise working or affiliated with eMath360 in any other capacity, from any claims, actions, losses, damages, liabilities, judgments, settlements, and other costs and expenses (including attorneys' fees and disbursements) arising out of or relating to: (1) breach or failure of your obligations under the Agreements by you or your child, (2) the placement by you or your child of a link to the Site on any Web site or in any e-mail, or (3) use of the Site or participation in any activities arising from the Site by you or your child, including but not limited to, the Programs. Such indemnity shall include any costs and expenses incurred by eMath360 in any actions taken to enforce this indemnity. FOR THE SAKE OF CLARITY, YOU AGREE TO BE RESPONSIBLE AND INDEMNIFY THE EMATH360 PARTIES FOR ANY ACTION OF YOUR CHILD GIVING RISE TO AN INDEMNFICIATION OBLIGATION TO THE COMPANY UNDER THIS SECTION 8.
10. DISCLAIMER OF WARRANTY; NO GUARANTEE; LIMITATION OF LIABILITY
THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY ACT OR OMISSION OF EMATH360 OR ANY OTHER EMATH360 PARTY, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF DATA, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER EMATH360 NOR ANY OTHER EMATH360 PARTY IS LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU AND YOUR CHILD. YOU AGREE THAT USE OF THE SITE IS ENTIRELY AT THE RISK OF YOU AND YOUR CHILD. THE SITE, THE CONTENT AND THE PROGRAMS ARE PROVIDED "AS IS," AND "AS AVAILABLE" FOR THE PERSONAL USE ONLY OF YOU AND YOUR CHILD, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY FOR INFORMATION, SERVICES, UNINTERRUPTED ACCESS OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH EMATH360 OR THE SITE. EMATH360 AND EACH OTHER EMATH360 PARTY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (A) ANY WARRANTIES CONCERNING THE AVAILABILITY AND ACCURACY OF CONTENT, INFORMATION, PRODUCTS OR SERVICES; AND (B) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PROCESS. YOU EXPRESSLY ACKNOWLEDGE THAT, WHILE THE SITE AND THE PROGRAMS ARE INTENDED TO IMPROVE THE ASSOCIATED EDUCATIONAL SKILLS AND PERFORMANCE OF YOUR CHILD, SUCH IMPROVEMENT IS NOT GUARANTEED. YOU AND YOUR CHILD HEREBY WAIVE ANY AND ALL CLAIMS WITH RESPECT TO THE IMPROVEMENT OR NON-IMPROVEMENT OF THE EDUCATIONAL SKILLS AND PERFORMANCE OF YOUR CHILD AS A RESULT YOUR CHILD’S USE OF THE SITE AND ANY PROGRAM. NEITHER EMATH360 NOR ANY OTHER EMATH360 PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE BY YOU OR YOUR CHILD OR THE INABILITY OF YOU OR YOUR CHILD TO GAIN ACCESS TO OR USE THE SITE OR THE CONTENT. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL IDEAS ON THE SITE OR SUBMITTED TO EMATH360. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU OR YOUR CHILD; IN SUCH JURISDICTIONS, EMATH360’S OR A EMATH360 PARTY’S POTENTIAL LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN THE EVENT THAT THIS SECTION 9 IS DETERMINED BY ANY COURT TO BE UNENFORCEABLE, YOU AGREE THAT ANY CLAIM THAT YOU OR YOUR CHILD BRING AGAINST EMATH360 OR ANY OTHER EMATH360 PARTY SHALL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY, AND SUCH CLAIM SHALL NOT BE CONSOLIDATED WITH THE HEARING OR OTHER PROCEEDING (INCLUDING WITHOUT LIMITATION ANY OTHER SUIT OR CLASS ACTION) BROUGHT BY OR AGAINST ANOTHER USER OR ANY EMATH360 PARTY WITHOUT EMATH360’S EXPRESS WRITTEN CONSENT.
11. VALIDITY OF ELECTRONIC/INTERNET CONTRACTS
The Agreements shall have the same meaning, force and effect as if executed by hand, and all of the laws to which a hand executed agreement are subject will govern the Agreements. A printed version of the Agreements shall be admissible in judicial or administrative proceedings based upon or relating to the Agreements to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
12. CHOICE OF LAW
THE AGREEMENTS WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, APPLICABLE TO AGREEMENTS MADE AND WHOLLY PERFORMED IN THAT STATE, WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF.
13. FORUM SELECTION AND CONSENT TO PERSONAL JURISDICTION
The parties agree that any lawsuit or other proceeding relating to or arising from the Agreements shall be brought in the United States District Court for the Eastern District of North Carolina, Raleigh Division, which shall have sole and exclusive jurisdiction over any such proceeding. If such court lacks federal subject matter jurisdiction, the parties agree that the courts of the State of North Carolina in Wake County shall have sole and exclusive jurisdiction. The parties (i) agree that any of the specified federal or state courts shall be proper venue for any such lawsuit or judicial proceeding, (ii) waive any objection to such venue, (iii) consent to and agree to submit to the jurisdiction of any of the courts specified herein and agree to accept service of process to vest personal jurisdiction over them in any of these courts, and (iv) agree that process in any action or proceeding referred to herein may be served on any party anywhere in the world
If you wish to contact eMath360 for any reason, please send your inquiries via mail or email to the appropriate location or website set forth at http://www.emath360.com/contacts.html.
The Agreements constitute the entire agreement between you and eMath360 and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and eMath360 with respect to the Site and the Programs. Waiver of any breach or default under any provision of the Agreements shall not be effective unless it is in writing and executed by eMath360, and shall not be deemed to be, and shall not be, a waiver of any subsequent or continuing breach of, or default under, such provision or of any other provision. If any provision of the Agreements is deemed invalid or unenforceable for any reason, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreements shall continue in full force and effect. You agree that the Agreements and all incorporated agreements may be assigned by eMath360, in its sole discretion, to any third party. Paragraph headings are solely for the convenience of reference and shall not be given any weight or effect in the interpretation or construction of the Agreements. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of the Agreements, including without limitation this Section 15. This Agreement is in effect as of and was last updated on June 1st, 2010.