PLEASE READ THESE TERMS OF SERVICE CAREFULLY BY CLICKING “ACCEPTED AND AGREED TO,” MEMBER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Edwards Mediation Academy, LLC, a California limited liability company, whose principal place of business is 1550G Tiburon Blvd., Ste. 623, Tiburon, California 94920 (“EMA”) and the individual or the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Member”). This Agreement is effective as of the date Member clicks “Accepted and Agreed To” (the “Effective Date”). Member’s use of and EMA’s provision of EMA’s Service (as defined below in Section1.5) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON MEMBER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND MEMBER TO THESE TERMS AND CONDITIONS.
The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.1. “Enrollment Order” means Member’s order for enrollment in a particular course, workshop or other training option offered through the Service, executed through EMA’s web site.
1.2. “Materials” means all materials provided or made available to Customer by EMA for Member’s use in courses, workshops or other training options offered through the Service, including without limitation video presentations, visual or graphic resources and worksheets, outlines and other written materials.
1.4. “Service” means EMA’s online educational platform providing commercial mediation training.
1.5. “Term” is defined in Section 11.1 below.
1.6. “User” means any individual who uses the Service on Member’s behalf or through Member’s account or passwords, whether authorized or not.
2. THE SERVICE.
2.1. Use of the Service. During the Term, Member may access and use the Service pursuant to: (a) the terms of any outstanding Enrollment Order, including such courses, workshops or other training options as the Enrollment Order specifies; and (b) EMA’s standard policies and procedures, which may be updated from time to time.
2.2. Use of Materials: Member may reproduce written Materials provided in PDF format or in the Service’s “Resources” section solely for its own use or for use by its Users, as necessary to participate in the training specified in the Enrollment Order. Member may not reproduce videotape presentations or other visual or graphic Materials without EMA’s written consent.
2.3. Service Revisions. EMA may revise Service features and offerings at any time, including without limitation by removing such features and offerings.
2.4. Self-Assessment and Education Credit. In connection with certain training options EMA may provide self-assessment tests for Members to use. EMA will not review or grade self-assessment tests or otherwise evaluate Members’ performance. EMA may also choose to register as a provider of education credits (for example, continuing legal education credits) required by certain professional organizations in certain states or other jurisdictions. No education credit will be available unless EMA specifically identifies it as available for a particular training option.
3. ENROLLMENT FEES.
Member shall pay EMA the fee set forth in each Enrollment Order (the “Enrollment Fee”) for each Term. EMA will not be required to refund the Enrollment Fee under any circumstances.
4. DATA & PRIVACY.
4.2. Risk of Exposure. Member recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Member assumes such risks. EMA offers no representation, warranty, or guarantee that data input into the Service by Member or Users will not be exposed or disclosed through errors or the actions of third parties.
4.3. Data Deletion. EMA may permanently erase data input into the Service by Member or Users if Member’s account is delinquent,suspended, or terminated for 30 days or more.
4.4. Excluded Data. Member represents and warrants Member and Users have not and shall not upload or transmit to EMA’s computers or other media, any data (“Excluded Data”) related to or including the identify of Member’s clients, the facts of any actual dispute, problems or situation about which Member has been consulted by a client, or any privileged information of or about a client regulated pursuant to laws and professional rules governing the duties of a lawyer or other professional to his or her clients (the “Excluded Data Rules“). MEMBER RECOGNIZES AND AGREES THAT: (a) EMA HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA RULES OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) THE SERVICE IS NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.5. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, EMA may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to data uploaded into the Service by Member or Users with the following removed: personally identifiable information and the names and addresses of Member and any of its Users or members.)
5. MEMBER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Members shall comply with the AUP. Member shall not: (a) use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service; (b) provide Service passwords or other log-in information to any third party; (c) share non-public Service features or content with any third party; or (d) access the Service in order to develop or provide a competitive product or service, to build a product or service using ideas, features, functions or Materials similar to those of the Service, or to copy any ideas, features, functions or Materials of the Service. In the event that EMA suspects any breach of the requirements of this Section 5.1, including without limitation by Users, EMA may suspend Member’s access to the Service without advanced notice, in addition to such other remedies as EMA may have. This Agreement does not require that EMA take any action against Member or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but EMA is free to take any such action it sees fit.
5.2. Unauthorized Access. Member shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Member shall notify EMA immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the Service, Member shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of data.
5.4. Users & Service Access. Member is responsible and liable for: (a) Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Member; and (b) any use of the Service through Member’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the Service. EMA retains all right, title, and interest in and to the Materials and the Service, including without limitation all software used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the Service. This Agreement does not grant Member any intellectual property license or rights in or to the Service or any of its components. Member recognizes that the Service and its components are protected by copyright and other laws.
6.2. Feedback. EMA has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Member or Users provide to EMA, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict EMA’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Member or the User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying EMA’s Service or any of its training methods or offerings.)
7. CONFIDENTIAL INFORMATION.
“Confidential Information” refers to the following items EMA discloses to Member: (a) any document EMA marks “Confidential”; (b) any information EMA orally designates as “Confidential” at the time of disclosure, provided EMA confirms such designation in writing within ten business days; (c) the Materials, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by EMA, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Member’s possession at the time of disclosure; (ii) is independently developed by Member without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Member’s improper action or inaction; or (iv) is approved for release in writing by Member.
7.1. Nondisclosure. Member shall not use Confidential Information for any purpose other than participation in the training offered through the Service (the “Purpose”). Member: (a) shall not disclose Confidential Information to any employee or contractor of Member unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Member with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without EMA’s prior written consent. Without limiting the generality of the foregoing, Member shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Member shall promptly notify EMA of any misuse or misappropriation of Confidential Information that comes to Member’s attention. Notwithstanding the foregoing, Member may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Member shall give EMA prompt notice of any such legal or governmental demand and reasonably cooperate with EMA in any effort to seek a protective order or otherwise to contest such required disclosure, at EMA’s expense.
7.2. Injunction. Member agrees that breach of this Article 7 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, EMA will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.3. Termination & Return. Upon termination of this Agreement, if requested by EMA, Member shall return all copies of Confidential Information to EMA (except as set forth in Section 11.3) or certify, in writing, the destruction thereof.
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. EMA will retain all right, title, and interest in and to all Confidential Information.
8. REPRESENTATIONS & WARRANTIES.
8.2. Warranty Disclaimers. MEMBER ACCEPTS THE SERVICE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) EMA HAS NO OBLIGATION TO INDEMNIFY OR DEFEND MEMBER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) EMA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) EMA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT DATA WILL REMAIN PRIVATE OR SECURE.
8.3. Disclaimers Regarding Scope of Service. IN ADDITION, MEMBER UNDERSTANDS AND AGREES THAT: (a) MATERIALS PROVIDED THROUGH THE SERVICE ARE GENERAL IN NATURE AND MAY NOT BE APPLICABLE TO OR USEFUL IN RESOLVING A SPECIFIC PROBLEM OR DISPUTE; (b) THE MATERIALS ARE NOT PROVIDED WITH ANY GUARANTY, WARRANTY, OR REPRESENTATION AS TO QUALITY OR SUITABILITY FOR ANY PARTICULAR PURPOSE OR AS TO SUCCESS IN RESOLVING ANY PARTICULAR DISPUTE; (c) TRAINING PROVIDED THROUGH THE SERVICE DOES NOT CONSTITUTE MEDIATION SERVICES OR THE PRACTICE OF LAW AND IS NOT LEGAL COUNSEL OR PROFESSIONAL ADVICE OF ANY KIND; (d) NEITHER EMA NOR ANY AUTHOR, SPEAKER OR OTHER PROFESSIONAL CONTRIBUTING TO THE MATERIALS IS RENDERING LEGAL OR OTHER PROFESSIONAL SERVICES; (e) EMA DOES NOT EVALUATE, LICENSE, CERTIFY, RECOMMEND OR REFER MEMBERS AS MEDIATORS OR REPRESENT, WARRANT OR GUARANTEE THAT MEMBERS WILL BE SUCCESSFUL MEDIATORS AND (f) EXCEPT AS SET FORTH IN SECTION 2.4 ABOVE, EMA DOES NOT PROVIDE TESTING, GRADING, TRANSCRIPTS OR CREDITS IN CONNECTION WITH TRAINING PROVIDED BY EMA.
Member shall defend, indemnify, and hold harmless EMA and the EMA Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Member’s alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims by Users or by Member’s employees, as well as by Member’s own clients; (b) claims alleging professional malpractice or disclosure of privileged information; (c) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including data uploaded to the Service by Member or Users; (d) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos, data or other content uploaded to the Service through Member’s account; and (e) claims that use of the Service through Member’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to EMA’s negligence. Member’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Member’s expense and payment of judgments. EMA will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “EMA Associates” are EMA’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. EMA’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY MEMBER FOR THE COURSE OR OTHER TRAINING OPTION OUT OF WHICH THE LIABILITY AROSE.
10.2. Exclusion of Consequential Damages. IN NO EVENT WILL EMA BE LIABLE TO MEMBER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF EMA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF MEMBER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, EMA’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, EMA’s liability limits and other rights set forth in this Article 10 apply likewise to EMA’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. Term & Termination.
11.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue until the latest end date of any period set forth in an Enrollment Order executed by Member or, if none, for six months. If the Term of this Agreement had ended, for whatever reason, the former Member must again click “Accepted and Agreed To” on EMA’s web site to become a Member again and submit Enrollment Orders.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach.
11.3. Effects of Termination. Upon termination of this Agreement, Member shall cease all use of the Service and delete, destroy, or return all copies of the Materials in its possession or control; provided that Member may keep one archival copy of any written Materials that Member was allowed to download for use in connection with one of EMA’s training options pursuant to an Enrollment Order, for Member’s internal use only. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Member to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.2 (Warranty Disclaimers), 8.3 (Disclaimers Regarding Scope of Service), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no EMA employee or contractor will be an employee of Member.
12.2. Notices. EMA may send notices pursuant to this Agreement to Member’s email contact points provided by Member, and such notices will be deemed received 24 hours after they are sent. Member may send notices pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received 72 hours after they are sent.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Member may not assign this Agreement or any of its rights or obligations here under without EMA’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Rafael, California.
12.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.10. Compliance with Law. Member shall not permit any third party to access or use the Service in violation of any U.S. law or regulation.
12.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.