Connections Learning Terms and Conditions Virtual Learning Programs

Last Updated: July 5, 2022

These Terms and Conditions are applicable to the academic, teaching and ancillary products and/or services to be provided to a private or public school, school district or other educational institution or organization (collectively “Customer”) by Pearson Virtual Schools USA (sometimes referred to in customer agreements as “Connections Learning,” “Connections Education LLC,” “Connections” or “Pearson”) (Pearson and Customer are sometimes referred to individually as a “Party” or collectively as the “Parties”), pursuant to an Agreement in which Customer has contracted to receive certain Educational Products and Services from Pearson. Pearson reserves the right to change these Terms and Conditions from time to time. Such changes will become effective when Pearson posts the revised Terms and Conditions on Pearson’s Website (as defined below) at https://www.pearson.com/obl-terms-conditions or such other URL as Pearson may later designate. Customer should check the Terms and Conditions from time to time, as Customer is bound by the current Terms and Conditions posted on the Website. Any revised Terms and Conditions will supersede all previous versions.

1. DEFINED TERMS. Capitalized terms within the Agreement or these Terms and Conditions, and not otherwise defined therein or herein, shall have the meanings ascribed to them in the Index of Defined Terms, attached hereto and incorporated herein by reference.

2. GRANT OF RIGHTS AND RESTRICTIONS.

a. License. Pursuant to the Agreement and these Terms and Conditions, Pearson hereby grants to Customer a non-exclusive, nontransferable, royalty-free, limited license during the applicable term of the Agreement for Authorized Users to access and use the EMS and the Content contained therein, in connection with the receipt of Educational Products and Services under the Agreement, subject to compliance by the Authorized Users with the Agreement (including these Terms and Conditions) and the Terms of Use. Pearson may update the features and functions of the EMS from time to time. Any right to use Content shall be solely for the applicable Courses for which a Student is enrolled. If specified in the Agreement, Pearson will also provide Pearson Teachers to teach the Courses. If Pearson Teachers are not specified in the Agreement, then Customer shall have sole responsibility to teach the Courses and to provide any other necessary support to the Students; provided, however, that Pearson may in some cases provide Tutors if tutoring services are so specified in the Agreement. Pearson may also provide training and/or other services as may be specified in the Agreement.

b. Permitted and Prohibited Uses. All rights not expressly granted to Customer and Authorized Users pursuant to the Agreement and these Terms and Conditions are reserved to Pearson, and any uses of the EMS or any Content by Customer and Authorized Users not expressly permitted in the Agreement and these Terms and Conditions are strictly prohibited.

Specifically, Customer will not, and will not permit Authorized Users, Customer’s employees or agents or any third party to: (i) access the EMS or Content except in connection with Courses for which a Student is enrolled; (ii) use Content except in strict compliance with the Agreement and the Terms of Use; (iii) copy, reproduce, modify, alter, transfer, transmit, perform, publish, display, sub-license, distribute, circulate, provide access to, rent, or create Derivative Works from the Content or any portion thereof, except as specifically permitted by the Agreement and the Terms of Use; (iv) decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine the source code (or the underlying ideas, algorithms, structure or organization) of the Content or the EMS; (v) upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of the EMS or the Content; (vi) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the control or security systems of the EMS or the Content, nor allow or assist a third party to do so; (vii) use the Content in a manner that disparages the EMS, the Content, Pearson or its content providers, or in any manner that Pearson may, in its sole discretion, deem inappropriate; or (viii) disclose Log-In Information (as defined in Section 2.d. below) or permit access to the EMS and/or the Content by unauthorized persons using an Authorized User’s Log-In Information.

c. Usage Guidelines and Rules of Conduct. Customer (including its employees and agents) and Authorized Users may use the EMS and the Content for bona fide educational and other contracted-for purposes only. Customer will comply and assure compliance by its employees, agents and the Authorized Users with the Agreement (including these Terms and Conditions), Terms of Use, Privacy Policy, Acceptable Use Policy, and other applicable Pearson policies, as updated from time to time by Pearson in its sole discretion. Customer acknowledges that Pearson may also institute basic rules for academic and personal conduct for Authorized Users’ use of the Content and the EMS, and that Pearson will enforce those rules in its sole discretion, including recommending to Customer the termination of access for Authorized Users in the event of their failure to adhere to those rules. Included in the rules of conduct shall be prohibitions against any Authorized User’s attempt to make inappropriate communication or contact with any other Authorized Users through the EMS, as well as, hacking, viral infection, or other technical attempts to gain unauthorized access to or cause damage to the EMS. Customer shall immediately provide Pearson with written notice of any unauthorized use or distribution of the Content of which Customer becomes aware and shall take all necessary steps to ensure that such unauthorized use or distribution is terminated.

d. Security and Use of Passwords. Each Authorized User will have a username and password for the purpose of accessing the EMS and the Content (the “Log-In Information”). Customer and its Authorized Users must keep all Log-In Information strictly confidential, and all Log-In Information may be used only by the assigned Authorized User. Customer and its Authorized Users are responsible for maintaining the security and confidentiality of all Log-In Information, and for preventing access to the EMS and/or the Content by unauthorized persons using an Authorized User’s Log-In Information. Unauthorized access to or use of the EMS and/or the Content by someone using an Authorized User’s Log-In information may be attributed to such Authorized User.

e. Availability and Support. Pearson does not guarantee availability of the EMS 24 hours per day, 7 days per week. Unless other support terms are specified by Pearson from time to time, Pearson agrees to provide EMS Student Technical Support (9am-9pm ET) and Teacher Help Desk Support (8am-6pm ET) Monday – Friday. Pearson will respond to general support issues within one (1) business day, after which they will be escalated as may be specified by Pearson from time to time. The contact for escalation of support issues will be as designated by Pearson.

f. Communications from Pearson. Customer acknowledges and agrees that Pearson may periodically contact Authorized Users in relation to Pearson carrying out its obligations set forth in this Agreement, as well as to inform Caretakers and Students of educational opportunities related to such Students’ academic pursuits such as summer school programs, dual credit opportunities, teacher directed extended learning activities, nationally facilitated clubs and non-School directed extracurricular activities, including sports program opportunities, as well as educational or professional post-graduate opportunities, in compliance with state and federal law. Unless prohibited by law, the Customer specifically consents to such communications being delivered to Caretakers and Students via the EMS WebMail portal and message boards, personal email or cell phone via text messaging to the extent such information is available, and direct mail. Except as identified herein Pearson will not deliver communications to Students that constitute targeted advertising based on personally identifiable information from Student Records. Telephonic communications shall be limited to School related communications of an immediate nature that impact a Student’s access to the Education Program or are related to the Students’ academic participation and/or academic achievement. By accessing the Licensed Collateral, the Customer and Authorized Users will be deemed to have consented to receive such communications.

3. CUSTOMER RESPONSIBILITIES.

a. Fees and Taxes. Customer will pay all fees incurred under the Agreement within thirty (30) days after the date of invoice or pursuant to such other payment terms as may be specified in the applicable Agreement. Any payments made past their due date shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. Customer will be responsible for all forms of tax in connection with the Educational Products and Services provided by Pearson under the Agreement, other than taxes on Pearson’s income. If Customer claims tax exempt status, Customer agrees to provide Pearson with evidence of such tax exemption upon Pearson’s request. To the extent that such tax exemption cannot be properly claimed or does not extend to certain taxes or transactions, Customer shall be responsible for any and all taxes that arise from the Agreement and related transactions (excluding taxes on Pearson’s income). All pricing set forth in any quotation, Agreement, or invoice is in United States dollars unless otherwise specified.

b. Compliance with Laws. In using the EMS, Customer agrees to comply with federal and state privacy laws, including, but not limited to, FERPA and the regulations promulgated under FERPA, and other similar federal or state laws, administrative rules and regulations restricting commercial use of, or otherwise regulating, Student information. Customer further agrees to limit access by its employees and agents to educational records containing personally identifiable information to solely those of its employees and agents who have a legitimate educational interest for such information. By designating an individual as authorized to have EMS access to educational records and other student related information, Customer represents such access is in compliance with all such federal and state privacy laws.

c. Hold Harmless. Customer agrees that it shall defend, indemnify and hold Pearson and its Affiliates and their respective agents and employees harmless against and from all costs, expenses, damages, injury or loss (including reasonable attorneys’ fees and expenses) to which Pearson, its Affiliates and their respective agents and employees may be subject due to any causes of action, disputes, demands, lawsuits, and/or judgments (together “Claims”) arising out of or relating to: (i) any wrongdoing, misconduct, negligence, or default by Customer, its agents, employees, or assigns in the execution or performance of this Agreement; (ii) noncompliance with any privacy or other laws applicable to Student Records or personally identifiable information; and (iii) any activities unrelated to the Educational Products and Services provided by Pearson, including, but not limited to, anysports, intramural, club, or outreach activities sponsored or approved by Customer, regardless of whether such sponsorship or approval was direct, indirect, express, or tacit.

4. AUDIT. Pearson will have the right, with ten (10) days prior notice, to audit Customer’s use of the EMS and the Content at Customer’s location(s). If any audit determines that the Customer has not complied with the terms of the applicable Agreement, Customer will promptly pay Pearson any amount that is due. Customer will also reimburse Pearson for its cost in conducting the audit, in the event the audit determines a shortfall over five percent (5%), in the amount paid to Pearson.

5. ACADEMIC INTEGRITY. Customer acknowledges that with respect to all Students enrolled in POA, POA shall be the sole decision maker with respect to all questions, issues, conflicts, or concerns relating to academic integrity and performance. With respect to Students enrolled in POA who are eligible to receive a POA diploma (including Customer branded diplomas issued by POA), determinations (i) as to whether transfer credit will be given for non-POA courses, (ii) of the additional requirements that must be met for POA to grant a POA high school diploma to Students, and (iii) as to whether to advance a Student from grade to grade or Course level to Course level, or (iv) to terminate the enrollment of a Student due to inadequate participation or academic performance, shall be in the sole discretion of POA.

6. TERMINATION.

a. Term. The term of the Agreement (including any potential renewal periods) will be as specified in the Agreement.

b. Terminations for Cause. Except as otherwise provided in the Agreement, either Pearson or Customer may terminate the Agreement at any time for cause upon thirty (30) days’ notice, unless the circumstances constituting the basis for the for-cause termination have been cured (if capable of being cured) by the other Party within such notice period. For purposes of the preceding sentence, a termination by one Party will be deemed for “cause” if: (i) the other Party materially breaches any provision of the Agreement; or (ii) the other Party violates any law or regulation material to the Agreement. In the event objectively ascertainable reasonable efforts have been made to effect such cure, and the breach at issue does not objectively lend itself to cure within such thirty (30) day period, then such additional time as necessary to complete said cure, but in no event longer than sixty (60) days following written notification of such breach. Notwithstanding the foregoing, Pearson may terminate the Agreement immediately upon written notice to Customer in the event of a breach by Customer of confidentiality or a violation by Customer of Intellectual Property rights. Such remedy shall not be deemed to be the exclusive remedy for a breach of the Agreement but shall be in addition to all other remedies available at law or in equity.

c. Termination for Financial Reasons. Either Party may terminate the Agreement upon written notice if the other Party: (i) files a petition for bankruptcy; (ii) is adjudicated bankrupt by any court; (iii) makes an assignment for the benefit of creditors; (iv) takes the benefit of any bankruptcy or insolvency act; or (v) generally becomes unable to pay its debts when due. Such termination shall be effective as of the date of filing of such petition, adjudication, appointment, assignment, declaration or commencement of reorganization or liquidation proceeding or said Party’s inability to pay its debt.

d. Termination or Suspension For Failure to Make Timely Payment. Pearson may, at its option, immediately terminate, or suspend its performance of, the Agreement with Customer any time Customer is more than thirty (30) days in arrears on its payment obligations to Pearson. In the event of termination or suspension by Pearson under this Section 6.d., Customer’s access to the EMS (including all Authorized Users whose right of access to the EMS is derived from Pearson’s contractual relationship with Customer) shall be discontinued without further notice. In the event of a suspension of access to the EMS, access may, at the sole discretion of Pearson, be restored when Customer’s payment obligations are brought current and Pearson has received adequate assurances that Customer’s payment obligations to Pearson shall remain current for the remainder of the term of the Agreement.

e. Termination due to Change in the Law. Pearson reserves the right to terminate the Agreement in the event any new legal obligation is imposed upon Pearson during the Agreement term and as a result of such new legal obligation, there is a material change to Pearson’s responsibilities under the terms of the Agreement or there is an increase in the cost of providing the contracted for Educational Product and Services, as determined by Pearson, or at its option, or if requested by Customer, will negotiate in good faith during the notice period regarding possible alternatives to termination; provided, however, that if the Parties are unable to agree on a mutually acceptable alternative, the termination notice shall remain in full force and effect.

f. Termination due to Material Conduct. Pearson reserves the right to terminate the Agreement if there are unresolvable differences between the Parties relating to what Pearson, in its sole discretion, considers to be conduct that reflects materially and unfavorably upon Pearson’s reputation with respect to the manner in which Customer carries out its responsibilities under the terms of the Agreement and Pearson provides the Customer with thirty (30) days written notice of its intent to terminate during which time the Parties shall work in good faith to alleviate to Pearson satisfaction the circumstances giving rise to such unresolvable differences. Termination under this provision may only take effect at the end of the Academic Year in which such notice is given.

g. Obligations on Termination. In the event the Agreement is terminated by either Pearson or Customer for any reason: (i) each Party shall promptly (not later than ten (10) days after the effective date of termination) return to the other Party all Confidential Information, Intellectual Property and material of any type belonging to the other Party, including but not limited to, electronic versions, hard copies and reproductions and shall not retain copies of any such Intellectual Property or material except as may be expressly permitted in the Agreement, and all electronic copies shall be permanently removed from all electronic data storage devices; (ii) all access to the EMS, Content, and Courses by Customer and its Authorized Users shall be discontinued; (iii) each Party shall cease the use of the other Party’s trade name, trademarks, copyrights and any other form of Intellectual Property rights; and (iv) Customer shall pay Pearson all amounts due under the Agreement upon the earlier of their due dates or thirty (30) days after the effective date of termination. Termination of the Agreement shall not relieve the Parties of any applicable obligation or liability under the Agreement, nor shall it affect or impair the rights of a Party arising prior to such termination.

7. CONFIDENTIALITY.

a. Confidential Information. The receiving Party shall use the Confidential Information only in connection with the furtherance of the business relationship between the Parties, and the receiving Party shall make no further use, in whole or in part, of any such Confidential Information. The receiving Party agrees not to disclose, deliver or provide access to all or any portion of the Confidential Information to a third party or to permit a third party to inspect, copy, or duplicate the same; provided that the receiving Party may disclose Confidential Information to its employees, agents and subcontractors who need access to such Confidential Information in connection with the performance of the Agreement or the applicable subcontract and who are under a written obligation to protect the confidentiality of such Confidential Information. The receiving Party will treat the Confidential Information with the same degree of care and confidentiality that the receiving Party provides for similar information belonging to the receiving Party that the receiving Party does not wish disclosed to the public, but not less than holding it in strict confidence.

b. Student Records. Pearson and Customer acknowledge and agree that under FERPA and any regulations promulgated thereunder, the Parties have certain obligations with regard to maintaining the security, integrity and confidentiality of “education records,” as that term is defined by FERPA. The Parties acknowledge that each Party must perform its obligations under the Agreement in compliance with FERPA and any regulations promulgated thereunder. Pearson and Customer each designate the staff, employees, agents, subcontractors and volunteers who are providing educational and/or administrative services to the Students as agents of Customer having a legitimate educational interest and thus entitled to access to educational records under FERPA.

c. Data Privacy. Pearson and Customer shall maintain personally identifiable information in accordance with applicable laws and regulations. Use of Pearson products and services and any information provide on Pearson products and services are subject to the Privacy Policy, which is incorporated into these Terms and Conditions.

d. Exceptions. The foregoing shall not prevent the receiving Party from disclosing Confidential Information that must be disclosed by operation of law, provided (i) the receiving Party shall promptly notify the disclosing Party of any such request for disclosure in order to allow the disclosing Party full opportunity to seek the appropriate protective orders, and (ii) the receiving Party complies with any protective order (or equivalent) imposed on such disclosure. It is understood and agreed that this Section 7.c. is not intended to permit the disclosure of education records referenced in Section 7.b. unless permitted by applicable law.

e. Return of Confidential Information. The receiving Party agrees that it will, within ten (10) days after written request by the disclosing Party, return to the disclosing Party, or at the option of the disclosing Party, destroy and certify in writing the destruction of, all Confidential Information received from the disclosing Party, including copies, reproductions, electronic files or any other materials containing Confidential Information. This provision shall not apply to the extent that the receiving Party is required to retain any such Confidential Information by any applicable law, rule or regulation, or by any internal record retention policy, or by any competent judicial, governmental, supervisory or regulatory body or by any backup computer systems that cannot be reasonably deleted, as determined by Pearson.

8. INTELLECTUAL PROPERTY

a. Ownership of Intellectual Property. Customer acknowledges and agrees that Pearson or its Affiliates and/or their third party vendors are the sole owners of the EMS, the Content and Courses, and any other content or materials contained in or delivered to Customer through the EMS or otherwise in connection with the Agreement (collectively the “Pearson IP”). Except for the limited rights granted in the Agreement, neither the Agreement, nor these Terms and Conditions, constitutes a license or other transfer by Pearson to Customer of any Intellectual Property rights in Pearson IP. All right, title, and interest in and to the Pearson IP, including, but not limited to, copyright, patent, trade secret, and trademark rights will remain with Pearson and its third party vendors, and Customer will use the Pearson IP only as authorized under the Agreement and will not otherwise violate any copyrights or other Intellectual Property rights of Pearson. Any attempted sublicense, assignment or transfer by Customer of any rights hereunder or in the Agreement without Pearson’s prior written consent shall be void. Customer shall not remove any copyright, patent, trademark, or any other proprietary rights legends from the Pearson IP. The placement of a copyright notice on any portion of Confidential Information does not mean that such portion has been published and will not derogate any claim of trade secret or confidentiality protection for the same.

b. Jointly Developed Courses. The Parties may jointly develop one or more Courses if agreed upon in the applicable Agreement. Unless otherwise agreed by Pearson and Customer, any courses jointly developed by Pearson and Customer and all Intellectual Property rights thereto will be jointly owned by Pearson and Customer (“Joint Courses”). Either Party shall be entitled to modify and create Derivative Works of the Joint Courses. Customer agrees that any Joint Courses and their Derivative Works may be used by Customer solely in connection with the receipt of services under an applicable Agreement or as part of the curriculum provided to Customer’s Students. Customer agrees that Pearson shall be entitled to copy, use, install, license, display, perform, transmit, execute, resell, print, host, distribute and otherwise commercialize the Joint Courses and their Derivative Works. Neither Party shall be required to account to the other Party for a share of the profits in connection with the authorized use of the Joint Courses and Derivative Works hereunder.

c. Trademarks. Pearson and Customer each grants to the other Party during the Term a non-exclusive, nontransferable license to use the logos, trademarks, service marks and/or trade names of such Party, as specified in the Agreement (the “Licensed Marks”), but solely in connection with the receipt of services under an applicable Agreement or for purposes of marketing the use of the Educational Products and Services to Customer’s Students and prospective Students in accordance with the requirements of these Terms and Conditions and the related Agreement, and subject to any pre-approval rights set forth in these Terms and Conditions and the related Agreement. All use of the other Party’s Licensed Marks shall be in accordance with any trademark usage guidelines provided by the other Party. Pearson’s current Trademark Usage Guidelines can be found at: http://www.connectionsacademy.com/terms-of-use/trademark-guidelines.aspx. Each Party retains all right, title and interest in and to its Licensed Marks and any related proprietary rights not expressly granted to the other Party hereunder. All goodwill attributable to the Licensed Marks will inure exclusively to the benefit of the owner of such Licensed Marks. A Party may revoke the other Party’s license to the Licensed Marks upon written notice in the event the other Party breaches any of the terms of this paragraph.

d. Customer Funds. No Customer funds shall be used in the development or procurement of any tangible or intangible materials, or any aspect of the Courses, curriculum or educational materials used in connection with the Education Products and Services Pearson provides in furtherance of its obligations set forth in the Agreement. Customer funds paid to Pearson for products delivered and/or services rendered in accordance with the terms of this Agreement shall not be deemed Customer funds once such payment is received by Pearson.

e. Student Data. Student specific data, including corresponding Caretaker data, is the property of the Customer and the Student and/or Caretaker, unless and to the extent that Pearson obtains such data from a source other than Customer, including directly from Student (if an emancipated minor or over the age of minority) or such Student’s Caretaker. Pearson will not use any such Customer owned Student specific data for any non-Customer related purpose without obtaining the written permission of such Student or Student’s Caretaker (as the case may be). Use for Customer related purposes shall include any use associated with Pearson’s or its subcontractor’s responsibility to provide the Educational Products and Services under this Agreement and for the purposes specified in the Privacy Policy. Pearson may freely aggregate Customer owned Student (including Caretaker) specific data for its own purposes so long as such aggregated use does not reveal identifying characteristics that would enable a third party to determine the identity of any individual Student or Caretaker. All such aggregated data shall be the property of Pearson. Pearson may freely use all such aggregated data without the consent of Customer.

9. REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that: (i) it has full power and authority to enter into the Agreement, and to agree to all the terms and conditions contained therein and in these Terms and Conditions, and has received all parental and other permissions required to permit Pearson to obtain and retain information (including personal information) from Authorized Users; (ii) only Authorized Users will access the EMS and the Content; (iii) Customer and its Authorized Users will at all times use the EMS and the Content only as expressly permitted by the Agreement and these Terms and Conditions; (iv) in the event that Customer requests that Pearson customize the interface with Customer’s trade name, trademarks or logos, and/or digitize and/or encode and/or host any of Customer’s content on the EMS and Pearson agrees to do so, Customer warrants that it has the full right and authority to so use and exploit any and all such trade names, trademarks, logos and content, including without limitation any and all underlying elements (the “Customer IP”); and (v) the Customer IP, any content, materials and/or information contributed by Authorized Users, and any revisions to the Content by Authorized Users, do not and will not contain any libelous, unlawful or infringing materials or content, will not infringe upon any party’s proprietary rights, including, without limitation, statutory or common-law copyright, trademark and right of privacy, and will not violate any law, regulation or right of any kind whatsoever or give rise to any actionable claim or liability.

10. INDEMNIFICATION.

a. Customer will defend, indemnify and hold Pearson, its Affiliates, agents and content providers, and the directors, officers, shareholders, employees, agents and representatives of each of the foregoing, harmless against and from any and all liabilities, claims, suits, losses, damages, costs, fees and expenses (including reasonable attorneys’ fees) brought against or incurred by Pearson that arise from or relate to: (i) any violation by Customer and/or its Authorized Users of the Agreement or these Terms and Conditions; (ii) any downloading of the Content except as authorized in the Agreement or these Terms and Conditions; (iii) any modification or editing made to any portion of the Content; (iv) the use of any portion of the Content with products or services not supplied by Pearson; (v) any breach of Customer’s obligations or warranties under the Agreement or these Terms and Conditions; or (vi) the negligence or intentional misconduct of Customer, its employees or contractors, agents or the Authorized Users.

b. Subject to Section 12, Pearson will defend, indemnify and hold Customer, its officers, directors, employees and agents harmless from and against any and all liabilities, claims, suits, losses, damages, costs, fees and expenses (including reasonable attorneys’ fees) brought against or incurred by Customer that solely arise from or solely relate to: (i) a material breach by Pearson of its obligations or warranties (subject to the disclaimer provided for in Section 11) under the Agreement or these Terms and Conditions, or (ii) the negligence or intentional misconduct of Pearson or any of its employees, contractors and agents.

11. WARRANTY DISCLAIMER. CUSTOMER CANNOT ASSUME THE PERFORMANCE OF THE EMS OR OTHER SUCH TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY PROBLEMS RELATED THERETO WILL BE CORRECTED, DESPITE PEARSON’S REASONABLE EFFORTS. ACCORDINGLY, EXCEPT FOR ANY EXPRESS WARRANTIES GIVEN IN THE AGREEMENT: (a) THE EMS AND THE CONTENT PROVIDED UNDER THE AGREEMENT ARE PROVIDED “AS IS” TO THE MAXIMUM EXTENT PERMITTED BY LAW; AND (b) PEARSON AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, TITLE, NONINFRINGEMENT, COURSE OF DEALING, OR COURSE OF TRADE. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, NEITHER PEARSON NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE EMS AND THE CONTENT PROVIDED UNDER THE AGREEMENT WILL MEET ANY REQUIREMENTS OR NEEDS THAT CUSTOMER OR THE AUTHORIZED USERS MAY HAVE, OR THAT THE EMS AND THE CONTENT WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE EMS AND THE CONTENT WILL BE CORRECTED, OR THAT THE EMS AND THE CONTENT ARE COMPATIBLE WITH ANY PARTICULAR OPERATING SYSTEM. FURTHER, EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, PEARSON MAKES NO GUARANTEE OF ACCESS TO OR ACCURACY OF THE CONTENT ACCESSED THROUGH THE EMS. IN NO EVENT WILL PEARSON BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ALTERNATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE EMS.

12. LIMITATION OF LIABILITY. FOR ANY BREACH OR DEFAULT BY PEARSON OF ANY OF THE PROVISIONS OF THE AGREEMENT OR THESE TERMS AND CONDITIONS, OR WITH RESPECT TO ANY CLAIM ARISING THEREFROM OR RELATED THERETO, PEARSON’s ENTIRE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE INCLUDING NEGLIGENCE, WILL IN NO EVENT EXCEED THE LESSER OF: (a) THE AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC COURSES OR PRODUCTS AND SERVICES THAT ARE THE SUBJECT OF THE CLAIM; OR (b) IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS UNDER OR RELATED TO THE AGREEMENT OR THESE TERMS AND CONDITIONS, THE AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT. IN NO EVENT WILL PEARSON BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER OR THE AUTHORIZED USERS BY ANOTHER PERSON, EVEN IF PEARSON, ITS AFFILIATES, OR ITS THIRD PARTY VENDORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE OTHERWISE FORESEEABLE. PEARSON WILL BE LIABLE TO CUSTOMER AS EXPRESSLY PROVIDED IN THE AGREEMENT OR THESE TERMS AND CONDITIONS, BUT WILL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT OR OTHERWISE TO CUSTOMER INCLUDING ANY LIABILITY FOR NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR ELSEWHERE, THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THE AGREEMENT WILL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION, BY CUSTOMER, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, AND WILL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR THESE TERMS AND CONDITIONS OR OF ANY REMEDY CONTAINED THEREIN. THE AUTHORIZED USERS WILL NOT BE CONSIDERED A THIRD-PARTY BENEFICIARY OF ANY OBLIGATION OF PEARSON TO CUSTOMER.

13. RELEASE. Customer releases and waives all claims against Pearson, its Affiliates, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing, from any and all claims, damages, liabilities, costs and expenses arising out of Customer’s use of the EMS and Content. California residents waive any rights they may have under §1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Customer agrees to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect.

14. INSURANCE. Each Party will maintain and keep in force no less than the amounts of insurance as are reasonable to cover insurable risks associated with operations under the Agreement in minimum amounts required by law or customary for that Party’s business.

15. PRODUCTS WITH TEACHING SERVICES. If the Customer desires a substantial increase in Student enrollments at any one time, or if there is an event of a national or regional scale that causes a sudden surge in enrollments, including Customer’s enrollments, Customer acknowledges that it may take up to two weeks to provide full access to the EMS to such Students for the purpose of utilizing the Products and Services, or the Students may not experience all aspects of the Products and Services immediately, until such time as adequate staffing is in place.

16. SPECIAL POPULATIONS PRODUCT. At all times during and after Pearson’s provision of any services related to special education, the Customer shall continue to serve as the Local Education Agency (LEA) and remain responsible for the provision of Special Education Services, including but not limited to satisfying the requirements of state and federal law, and the provision of a Free and Appropriate Public Education (FAPE) to its students under the Individuals with Disabilities Education Act (“IDEA”). Pearson does not assume any liability and specifically disclaims any and all liability with respect to the Customer’s provision of Special Education Services to its students.

15. GRADPOINT PRODUCT. Customer may purchase licenses to a product known as GradPoint™ from Pearson. In such event, Customer is advised that the GradPoint product is owned by an Pearson Affiliate from which Pearson has obtained the right to resell the GradPoint product. Any purchase of licenses to the GradPoint product by Customer shall be subject to the applicable license agreement for the GradPoint product, a copy of which is available at https://www.pearson.com/content/dam/one-dot-com/one-dot-com/us/en/files/Gradpoint-Product-Agreement.pdf.

16. GENERAL PROVISIONS.

a. Independent Contractors. The Parties to the Agreement are independent contractors, and no agency, partnership, joint venture, franchise, or employee-employer relationship is intended or created by the Agreement and neither Party shall have a right to bind the other Party.

b. Successors or Assigns. The rights granted herein shall be non-transferable and non-assignable and the obligations may not be delegated by Customer except with the prior written consent of Pearson and any attempted transfer, assignment or delegation without the required consent shall be void. The Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

c. Complete Agreement; Modifications. The Agreement, together with these Terms and Conditions, constitutes the entire agreement among the Parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings, written or oral, with respect to the subject matter hereof. The Agreement may not be amended or modified in any way, nor may noncompliance with its terms be waived, except pursuant to a written instrument signed by the affected Party.

d. Severability. If any provision of the Agreement, together with these Terms and Conditions, is held to be invalid or unenforceable, it shall be ineffective only to the extent of the invalidity, without affecting or impairing the validity and enforceability of the remainder of the provision or the remaining provisions of the Agreement.

e. No Third Party Rights. The Agreement is made for the sole benefit of the Parties. Except as otherwise expressly provided, nothing in the Agreement shall create or be deemed to create a relationship among the Parties or any of them, and any third party, including a relationship in the nature of a third-party beneficiary or fiduciary.

f. Waiver. Any waiver by a Party of any default or breach hereunder shall not constitute a waiver of any provision of the Agreement or of any subsequent default or breach of the same or a different kind.

g. Venue and Applicable Law. The Agreement shall be governed by the laws of the State of Maryland, without regard to conflict of laws principles. Any legal actions prosecuted or instituted by any Party under the Agreement shall be brought in a court of competent jurisdiction located in Maryland and Customer hereby consents to the jurisdiction and venue of any such courts for such purposes. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.

h. Surviving Obligations. All accrued payment obligations under the Agreement, any remedies for breach of the Agreement, and the following Sections will survive any expiration or termination of the Agreement: Section 3.a. (Fees and Taxes), Section 4 (Audit), Section 6.e. (Obligations on Termination), Section 7 (Confidentiality), Section 8 (Intellectual Property), Section 9 (Representations and Warranties), Section 10 (Indemnification ), Section 11 (Warranty Disclaimer), Section 12 (Limitation of Liability), Section 13 (Release) and Section 17 (General Provisions).

i. Force Majeure. If any circumstance should occur that is not anticipated or is beyond the control of a party or that delays or renders impossible or impracticable performance as to the obligations of such party (except the making of payments and compliance with Intellectual Property rights of a Party) , the party’s obligation to perform such services shall be postponed for a period equal to the time during which such circumstance shall extend, or, if such performance has been rendered impossible by such circumstance, shall be cancelled. Such circumstances shall include, but are not limited to, disasters, acts of God, national emergencies, government regulations, pandemic, epidemic and/or disease or other acts beyond the control of the parties, including downstream effects or consequences of such events (any of them, a “Force Majeure Event”). Upon a Force Majeure Event, the non-performing Party will: (i) immediately notify the Party affected; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. In the event a Force Majeure Event continues for a period of ninety (90) calendar days, Customer or Pearson may elect to terminate the Agreement upon notice to the other Party.

j. Headings. All captions and headings in the Agreement or herein are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.

k. Electronic Signatures. The Agreement and related documents (including these Terms and Conditions) 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 the Parties. 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 and/or signed in electronic form. Each Party further acknowledges and agrees that it will not contest the validity or enforceability of a signed facsimile copy of the Agreement and related documents on the basis that it lacks an original handwritten signature. Facsimile signatures shall be considered valid signatures as of the date hereof. Computer maintained records of the Agreement and related documents when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.

l. Publicity. Neither Party will issue any press releases or other public information about the existence of or specific details regarding the Agreement without the prior written consent of the other Party. However, Customer agrees that Pearson may make reference to its business relationship with Customer in Pearson’s marketing or sales materials.

m. Remedies. The Parties acknowledge and agree monetary damages may not be a sufficient remedy for a breach of Sections 2 (Grant of Rights and Restrictions), 7 (Confidentiality) or 8 (Intellectual Property) and that in the event of a breach or threatened breach of Sections 2, 7 and/or 8, the non-breaching Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court or administrative institution of competent jurisdiction. The Parties hereby waive the posting of a bond or other security in connection with any such action. Such remedy shall not be deemed to be the exclusive remedy for a breach of the Agreement but shall be in addition to all other remedies available at law or in equity.

n. Attorneys’ Fees. If, for any reason, a successful Party incurs costs of collection and/or attorneys’ fees in otherwise enforcing the Agreement, the unsuccessful Party shall be responsible for and shall pay all attorneys’ fees, costs of collection and all other expenses associated with such collection or enforcement efforts.