Canada - Additional Terms and Conditions

  1.  DEFINITIONS AND INTERPRETATION
    1. These additional terms and conditions shall be incorporated into and made part of the Agreement for Access and Use of Pearson Product that incorporates this Schedule B and shall, together with such Agreement for Access and Use of Pearson Products, be collectively referred to as the “Agreement”.
    2. No variation or addition to these additional terms and conditions will be effective without the prior written consent of Pearson, and any additional or alternative terms that Customer may seek to impose will be void and/or unenforceable.
    3. A person who is not a party to this Agreement will not have any rights under it.
    4. In this Agreement words and phrases have the meanings given to them in the Agreement for Access and Use of Pearson Products and this Clause 1.4:
      1. “Access Period” means the period during which an Authorized User may access a Pearson Product, as set out in the Agreement for Access and Use of Pearson Products.
      2. “Customer Information” means information, materials and data provided by Customer to Pearson, either directly or via Authorized Users, which is subject to data privacy laws.
      3. “Customer Materials” means logos, information, materials or other content provided to Pearson by Customer, its agents or its Authorized Users, whether directly or indirectly (such as by placement of such materials by Authorized Users within an LMS or Pearson’s systems, including but not limited to assignments allocated to Authorized Student Users and the results of those assignments);
      4. “EULA” means the End User License Agreement provided by Pearson on the online platform through which a Pearson Product is accessed.
      5. “LMS” means a learning management system.
      6. “Marks” means trade names, trademarks and logos.
      7. “Party” means each of Pearson and Customer, as applicable.
      8. “Pearson Materials” means the content, materials, technology and data contained in the Pearson Products and any derivative works thereof.
      9. “Pearson Products” means those digital products as are identified in the Agreement for Access and Use of Pearson Products that refers to these additional terms and conditions. 
  2. ACCESS AND USE
    1. Each Pearson Product may be made available by Customer solely to Authorized Users, who may access such Pearson Product upon accepting Pearson’s EULA and Privacy Policy.  For avoidance of doubt, Customer itself will be bound by the terms of the Agreement, and not by the EULA.
    2. To the extent a Pearson Product is made available to Authorized Users via a Learning Tools Interoperability (LTI) link from a Customer LMS, Customer (by itself or through its third-party provider) will ensure that only Authorized Users access the Pearson Product and that such Customer LMS applies digital rights management and other protections necessary to prevent copyright infringement, misappropriations and misuse of the Pearson Product.
    3. If a Customer LMS incorporates a single sign-on feature that enables Authorized Users to directly access a Pearson Product without further registration or log-on, then Customer (by itself or through its third-party provider) shall require Authorized Users to access and use the Pearson Product in a manner consistent with the terms of Pearson’s EULA.
    4. Pearson may suspend access to the Pearson Products, in whole or in part, if in Pearson’s reasonable discretion there is an emergency situation, including but not limited to a breach of security or unauthorized use of the Pearson Products.
  3. RESTRICTIONS ON USE
    Customer acknowledges that the Pearson Products are intended solely for distribution to Authorized Users for personal, non-commercial use in their respective Courses.  Customer will not sell, resell, license, sublicense, distribute, make accessible, rent or lease Pearson Products to any students, individuals, institutions or third parties who are not Authorized Users.
  4. OWNERSHIP
    1. All right, title and interest in and to the Pearson Products and the Pearson Materials are expressly reserved by Pearson, except for Customer Materials contained in the Pearson Products, if any.
    2. Except as expressly set forth in the Agreement, neither Customer nor its agents resell, publish, distribute, share, sublicense, provide access to, copy, adapt, translate, modify, enhance or use Pearson Products or the Pearson Materials contained therein without the express written permission of Pearson.  Customer will be responsible for any losses to Pearson arising out of Customer’s or its agents’ unauthorized distribution, alteration or use of the Pearson Products.
  5. SECURITY AUDIT
    Pearson has the right to audit and inspect the systems and processes of Customer and its third-party partners for compliance with this Agreement.  Pearson may stop distributing Pearson Products to Customer if at any time Pearson determines that Customer’s or its third-party partners’ direct or indirect practices for protecting the Pearson Products from unauthorized use are inadequate.   If Customer is not able to remedy such practices to Pearson’s satisfaction within ten (10) days, Pearson will be entitled to terminate this Agreement immediately for material breach.
  6. BOOKS AND RECORDS
    1. Customer will maintain (or require its Approved Distributor or Leased Operator to maintain, as applicable) complete and accurate books of account and records covering all usage of Pearson Products under the Agreement, as well as all Course enrollment information.
    2. Pearson will have the right to inspect and copy such records upon reasonable notice in order to confirm Customer’s use of the Pearson Products and to verify the Usage and Enrollment Reports.
    3. Customer shall immediately pay any shortfall that results from Pearson’s inspection of such records.  If Customer has underreported by five percent (5%) or more any amounts owed to Pearson for any six-month billing period, Customer shall reimburse Pearson for its reasonable expenses of any such inspection.
  7. ACCESSIBILITY
    Pearson incorporates technically feasible accessibility features into certain Pearson Products.  The provision of additional accessibility features shall be provided at Pearson’s discretion and may be subject to additional costs.
  8. TERMINATION OF ACCESS
    1. The use of Pearson Products by an Authorized User is subject to any EULA associated with such Pearson Products.   Customer will promptly notify Pearson of any actual or suspected violation discovered by Customer and will cooperate with Pearson regarding any violation, including termination of the violator’s access to the Pearson Products.  Pearson reserves all rights against the violator including the right to bring any legal or equitable action Pearson deems appropriate.
    2. Pearson may require Customer and its Authorized Users to stop (within 3 business days) using any Pearson Product if: (i) Pearson notifies Customer that Pearson no longer has the necessary rights to the Pearson Product or the Pearson Product has been discontinued, (ii) Pearson believes cessation is necessary to limit or avoid liability, or (iii) Pearson is otherwise required by law or court order to cease and desist.  In such events, Pearson will use commercially reasonable efforts to replace, at no cost to Customer, any affected Pearson Products with other materials for Customer to use in accordance with these additional terms and conditions.
  9. PAYMENT 
    To the extent Customer (or its Approved Distributor or Leased Operator) fails to pay an invoice when due, Customer will be responsible for Pearson’s reasonable legal fees relating to the enforcement of such payments.  If Customer (or its Approved Distributor or Leased Operator, as applicable) has failed to make any payment due to Pearson pursuant to the Agreement and such failure has continued for fifteen (15) days following the provision of written notice detailing such failure to Customer, unless Customer has provided Pearson with notice that Customer in good faith disputes the amount of such payment and has deposited the amount of such payment into an interest bearing trust account to be released only upon resolution of the dispute, Pearson may, at its discretion, (i) suspend all further use and distribution of Pearson Products or (ii) terminate the Agreement and require all amounts to be paid thereunder.
  10. USE OF MARKS
    Each Party owns certain Marks, and such Marks are and will remain the exclusive property of such Party.  The Agreement gives the other Party no rights therein, and the other Party will never assert any rights therein; provided, however, that Customer grants to Pearson a non-exclusive, non-royalty bearing license to reproduce Customer’s Marks solely in conjunction with the publication, distribution and sale of the Pearson Products to Customer under the Agreement.  Customer further agrees not to remove or alter any Pearson Mark or other proprietary notice in or on any Pearson Product.
  11. TERMS AND TERMINATION
    1. This Agreement may be terminated:
      1. immediately if the other Party fails to remedy a material breach within 60 days’ after receiving notice asking it to remedy the breach; or
      2. immediately if the other Party becomes bankrupt, ceases or threatens to cease to do business, or is the subject of any actual or threatened insolvency event.
    2. On termination Customer and its Authorized Users will have no further right to access or use any Pearson Products.  Any amounts due under this Agreement as at the date of termination will be paid immediately.  Further, all sums which would have become due had this Agreement continued will become immediately due and payable if this Agreement is terminated by Pearson under this Clause 11.
  12. CUSTOMER MATERIALS
    If Customer or its Authorized Users provide Pearson with Customer Materials, then:
    1. Customer grants Pearson a non-exclusive license to access, use, copy, transmit and prepare derivative works from the Customer Materials in order to supply the Pearson Products and to supply analysis and feedback to Customer on the Authorized Users’ usage of the Pearson Products; and
    2. Customer represents and warrants that it owns the Customer Materials or has obtained the necessary rights so that Pearson’s use of the Customer Materials in order to supply the Pearson Products to Customer and Authorized Users will not violate the intellectual property or other rights of a third party.
  13. DATA PRIVACY
    1. Pearson will not distribute Customer Information in violation of any data privacy laws.  However, Customer acknowledges and agrees that, by granting user identifications and/or passwords, Customer controls, defines and manages access to Customer Information and related records and data that will be used within the Pearson Products, as well as in any Customer LMS.
    2. Customer is responsible for (a) compliance with all foreign and domestic privacy and student record laws and regulations that may be applicable to Customer’s use of the Pearson Products; (b) securing all necessary prior consents (if any are required) for the collection, storage and use of education records, data and personal information within the Customer LMS or any Pearson Products; and (c) the creation of, and compliance with, applicable policies regarding the access and use by Authorized Users of personally identifiable information stored in the Customer LMS or in any Pearson Products.
    3. Customer may provide Pearson, either directly or indirectly via Authorized Users, with Customer Information.  Pearson may use the Customer Information to the extent necessary for Pearson and its third-party partners to perform its obligations under the Agreement.  Notwithstanding the foregoing, during the term of the Agreement and after its expiration, Pearson may use anonymous or de-aggregated data related to student performance and the activity of Authorized Users for product improvement, efficacy reports and general research and analytical purposes (which Pearson may share with other third parties).
  14. CONFIDENTIAL INFORMATION
    1. Customer acknowledges that the prices being offered to Customer for Pearson Products, and the conditions of such price offers, contained in the Agreement (and any related purchase offers) is the confidential information of Pearson, and that the public disclosure of such confidential information could cause substantial competitive harm to Pearson.  Consequently, Customer agrees that it shall, and shall require its officers, directors, employees, distributors and agents to, keep confidential and not disclose such confidential information except to its authorized legal and financial representatives with a need to know and then only for purposes of representing Customer’s interests hereunder.
    2. Customer will not issue any press release or make a public announcement relating in any way whatsoever to the Agreement or the relationship established by the Agreement, without the prior written consent of Pearson.
    3. Notwithstanding the foregoing, Customer shall be permitted to respond to third party requests made pursuant to state and federal freedom of information statutes; provided that Customer (i) provides Pearson with prompt written notice that a third party has requested disclosure of the Agreement (or any portions thereof), a related purchase order or any other materials or information in connection herewith or therewith; (ii) allows Pearson an opportunity to object to such request prior to the disclosure; and (iii) in any event, discloses only such information that Customer is legally required to disclose and then only to the extent specifically requested by such third party.
  15. DISCLAIMER
    Pearson makes no warranty that its platforms or systems or Customer’s use of them will be uninterrupted or error-free.  Except as set out in these additional terms and conditions, Pearson expressly disclaims all warranties, expressed or implied, including but not limited to any warranties of merchantability, fitness for a particular purpose, title, and non-infringement of third party rights or any present or future use, integration or compatibility with any other products or services.  Pearson does not warrant that the Pearson Products will meet Customer’s requirements.  Customer acknowledges that it has relied on no warranties other than the express warranties provided in these additional terms and conditions.
  16. LIMIT OF LIABILITY
    1. Neither Party will be liable to the other for any indirect, special, incidental, or consequential damages, including without limitation any lost data, lost profits and costs of procuring substitute goods or services, arising out of or related to this Agreement, or the use of or inability to use the Pearson Products, whether arising in contract, tort or otherwise, even if it has been advised of the possibility of such damages.
    2. Pearson’s total aggregate liability to Customer for all damages arising out of or related to this Agreement or Customer’s, its agents’ or Authorized Users’ use of the Pearson Products will not exceed the amount paid by Customer for the specific Pearson Product giving rise to the claim in the 12-month period immediately preceding the claim.
    3. The limitations set forth in this Section 16 shall apply whether such liability is asserted on the basis of contract, tort, or otherwise, even if the Party has been warned of the possibility of any such loss or damage, and even if any of the limited remedies in the Agreement fails of their essential purpose.
    4. No action, regardless of form, arising under the Agreement may be brought by either Party more than one (1) year after the facts supporting the cause of action become known, or reasonably should have become known, to the claimant, except that an action for non-payment may be brought without any limitation on time.
  17. FORCE MAJEURE
    Neither Party shall be liable for any failure or delay in performing any of its obligations under this Agreement to the extent such failure or delay results from any event or circumstance beyond its reasonable control.  This provision shall not apply to a Party’s payment obligations.
  18. ASSIGNMENT
    The Agreement will be binding on the Parties and their respective successors and permitted assigns.  Customer may not assign its rights or delegate its obligations under the Agreement to any third party without the prior written consent of Pearson.
  19. ENTIRE AGREEMENT
    The Agreement, together with any attachments and schedules hereto and documents referenced herein, constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all other prior or contemporaneous agreements, understandings and communication, whether written or oral.  The Agreement will not be modified except by a subsequently dated written amendment signed on behalf of Pearson and Customer by their duly authorized representatives.  These additional terms and conditions will govern in the event of any conflict with any other terms, attachment, exhibit or schedule to the Agreement.
  20. COUNTERPARTS
    The Agreement may be executed in one or more counterparts by the execution of duplicate signature pages hereof, each of which shall be deemed the execution of the original Agreement and read together and construed as one and the same agreement.
  21. ELECTRONIC SIGNATURES
    The Agreement and related documents may be accepted in electronic form (e.g., by scanned copy of the signed document, an electronic or digital signature or other means of demonstrating assent) and each Party’s acceptance will be deemed binding on such Party.  Each Party acknowledges and agrees it will not contest the validity or enforceability of the Agreement and related documents, including under any applicable statute of frauds, because they were accepted or signed in electronic form or via facsimile copy.  Facsimile, PDF and electronic signatures shall be considered valid signatures as of the date hereof.
  22. GOVERNING LAW
    This Agreement shall be governed by and construed in accordance with the substantive laws of the Province of Ontario as if executed and fully performed therein, without regard to its provisions on choice of law. Any action or proceeding arising from or relating to the agreement will be brought in a court located in Toronto, Ontario, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
  23. NOTICES
    Any notice given under this Agreement must be in writing and delivered to the following address, or to such other address as one Party may notify to the other from time to time:

    If to Pearson: To the correspondence address identified on the Inclusive Access Agreement with a courtesy copy to:

    Associate General Counsel, North America Pearson
    221 River Street
    Hoboken, NJ 07030

    If to Customer: To the address identified on the Inclusive Access Agreement.
  24. Version of Additional Terms and Conditions
    1. This version of the additional terms and conditions applies to the Agreement executed by Pearson and Customer at any time until this version of the additional terms and conditions is superseded by a new version.
    2. These additional terms and conditions may be updated from time to time at the discretion of Pearson.  In the event of a modification of these additional terms and conditions that adversely affects Customer’s rights to use the Pearson Products, such updates will be set forth in a subsequently dated written amendment signed on behalf of Pearson and Customer by their duly authorized representatives.