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ESPRESSO USA Terms and Conditions, for the Espresso USA Product

Updated 01/16/14

1.             Application of Terms and Conditions

1.1          These terms and conditions ("Terms and Conditions") together with the order form (the "Order") set out the agreement (the "Agreement") between the customer named on that Order (the "Customer") and Espresso Education, Inc ("Espresso") in relation to the provision by Espresso and the Customer's use of the Espresso product as described in clause 4 below (the "Product"). A contract will only be formed between Customer and Espresso when Espresso confirms its acceptance of the Customer's Order.

2.             Term

2.1          Notwithstanding anything to the contrary contained in previous versions of these Terms and Conditions or in a separate written docment, with respect to each and every Customer that is currently accessing the Product during an authorized Order Period, this Agreement and the grant of license to access and use the Product contained herein shall commence on the date of Espresso's acceptance of the Order and shall continue until the earlier of the expiry of the current Order Period and August 31, 2014, unless terminated earlier in accordance with clause 9.5 or clause 12 (the "Term").  For the purposes of this clause, "Order Period" shall mean the period commencing on the date the Product is deemed accepted in accordance with clause 2.2 and  continuing for the period indicated on the Order. For the avoidance of doubt, any references herein to the Initial Term or the Extended Term shall be deemed to be references to the Term. 

2.2          The Product will be deemed to have been accepted by the Customer on notification from Espresso that the Customer is authenticated by Espresso (the "Customer Authentication") and may access the Product over a broadband link which meets the relevant minimum specification as may be specified by Espresso from time to time (the "Deemed Product Acceptance Date").  For the avoidance of doubt, there will be no delay to the Deemed Product Acceptance Date where the actual provision of the Product is delayed due to the Customer or a third party failing to satisfactorily complete any relevant configuration of the Customer's hardware or any necessary changes or adjustments to computer configurations or network settings and Espresso shall have no liability to the Customer in relation to any such delay.

3.             Grant of License

                 Espresso grants to the Customer a non-exclusive and non-transferable license to use the Product as set forth in Section 5 during the Term for the purpose of providing teaching resources on a non-commercial basis at all times subject to the terms and conditions of this Agreement.

4.             The Product

4.1          The Product will comprise a combination (which will vary from time to time) of video and audio clips, interactive news articles, multimedia games, websites and worksheets.

4.2          The Product will comprise content selected by Espresso and provided to the Customer to use as a teaching resource. It is generally designed and aligns to work with various State Curricula where practicable to do so and is generally categorized into modules that support the same.  For the purposes of this clause 4.2, "State Curriculum" shall mean the curriculum that sets out the statutory entitlement to learning for all pupils, determines the content of what will be taught, sets attainment targets for learning and is maintained by a statutory authority.

4.3          As part of the Product, Espresso will provide documentation detailing instructions for use of the Product and may also provide from time to time certain other supporting documentation (the "Documentation").

4.4          Espresso will use reasonable endeavors to provide the Customer with regular updates to the Product ("Updates") and Espresso reserves the right to remove, modify or amend the content in whole or in part. If the Customer does not receive any Update, it is the Customer's responsibility to promptly inform Espresso and Espresso shall have no liability to Customer for any failure to provide Updates where it is not so informed. Where Espresso is so informed it shall then use its reasonable endeavors to rectify any problem that is Espresso's responsibility and within its control and shall use its reasonable endeavors to then provide such Update to the Customer. Updates are designed to be supplied via a broadband connection with a minimum specification of 2Mb.

4.5          Espresso warrants that it will use reasonable skill and care in its provision of the Product.

5.             Use of the Product

5.1          The Product will only be provided where the Customer has received Customer Authentication from Espresso.

5.2          The Customer may authorize individuals (which, for the avoidance of doubt shall include but not be limited to teachers and students) within its own organization and if other organizations are specified on the Order within such other organizations ("End-Users") to access and use the Product, but no other individuals or third parties unless Espresso has given its prior written consent to the same. The Customer is responsible for ensuring that all End-Users comply with the terms and conditions of this Agreement.

5.3          The Customer is responsible for preventing unauthorized use of and access to the Product through its internal network. The Customer must promptly notify Espresso by email at techsupport@espressoeducation.com if there has been any breach of security or other unauthorized use of or access to the Product.

5.4          If Espresso believes or has reasonable grounds to suspect that the Product is being used by the Customer or its End-Users in any way which is not expressly permitted by this Agreement, then Espresso reserves the right to suspend the Customer's (and hence its End-Users') use of and access to the Product.

5.5          The Customer and its End-Users may only retrieve and display materials provided as part of the Product on computer screens, projector screens, electronic whiteboards and similar equipment located at the address(es) specified on the Order, print pages of parts of the Product (including the Documentation), temporarily store parts of the Product in electronic form on disk, hard drive or server, and may modify individual video clips, worksheets and other elements of the Product written in html computer code, but in each case only to the extent reasonably necessary to provide teaching resources on a non-commercial basis at the address(es) listed on the Order. Espresso reserves the right to audit the Customer's and its End-Users' use of the Product to ensure compliance with this Agreement. The parties shall consult with each other and co-operate in relation to such audit to allow Espresso reasonable access to the Customer's premises, equipment and materials at reasonable times to carry out such audit.

5.6          Except as expressly set out in clause 5.5 above, the Customer may not, without the prior written permission of Espresso: (i) modify or reproduce any part or the whole of the Product; (ii) redistribute or publicly display any part or the whole of the Product; (iii) create a database in electronic or hard copy form by systematically downloading and storing or printing any part or the whole of the Product; or (iv) sub-license, assign, transfer, loan, sell, lease, rent, charge or otherwise deal in the Product or make the Product available to any third party.

5.7          Espresso processes information about the Customer and the End-users in accordance with its privacy policy at www.espressoeducation.com/privacy-policy. By using the Product, the Customer consents to such processing and warrants that all data provided by it or the End-Users is accurate. Espresso uses "cookies", text files, log files and/or page tagging placed on the Customer's and/or End-Users' computers and/or other hardware (together the "Log Files"). The information generated by the Log Files about the Product and the Customer's and End-Users' use of the Product (including End-Users' IP addresses) (the "Product Evaluation Data") will be transmitted to and stored by Espresso. Espresso will use this information for the purpose of evaluating and analyzing the Customer's and the End-Users' use of the Product, to diagnose and resolve any problems with the Product and to generally support Customers, End-Users and the running of the Product. Espresso may also transfer the Product Evaluation Data to third parties where required to do so by law, or where third parties process it on Espresso's behalf. Espresso will not associate any IP addresses in the Product Evaluation Data with any other data held by it. By using the Product, the Customer hereby consents to the processing of data about it and its End-Users by Espresso in the manner and for the purposes set out above.

6.             Support Services

6.1          Espresso will provide support to the Customer and its End-Users (as requested in accordance with this clause 6) where the content of the Product does not perform and where the content navigation in relation to the Product does not perform without material errors (examples of material errors include broken links and page unavailability) (each being a "Fault"). For the avoidance of doubt, a Fault does not include any error in relation to the functionality of software or websites other than that provided by Espresso as part of the Product.  Espresso is not responsible for and does not endorse any sites on the Internet that are linked through the Product.  Espresso provides these links to you only as a matter of convenience, and in no event shall Espresso be responsible for any content, products, or other materials on or available from such sites.

6.2          If the Customer is unable to resolve a Fault, Espresso should be contacted by telephone on 888-240-0188 or email at techsupport@espressoeducation.com (or such other contact details as Espresso may provide to Customer from time to time).Espresso will use reasonable endeavors to respond as soon as reasonably practicable.  It is the Customer's responsibility to promptly inform Espresso of any Fault it encounters and Espresso shall not be responsible for providing any support to Customer in relation to any Fault where it is not so informed.

6.3          Espresso shall not be responsible for rectifying or providing any support in relation to any problem or issue that is not, in the reasonable opinion of Espresso, a Fault.

6.4          In the event of a Fault, the Customer shall provide all reasonable assistance to Espresso in identifying whether the problem is a Fault, all relevant detail in relation to the Fault and in carrying out any repair to the Fault (or such other action as Espresso may take).  This assistance may include, but is not limited to, arranging for a suitable qualified individual to liaise with Espresso by telephone and/or email.

6.5          Espresso shall use reasonable endeavors to assist the Customer in being able to access the Product from the Customer's computers. Espresso will inform the Customer of the minimum specification for computers that is recommended in order to allow access to the Product. Espresso shall not be liable for any failure to access the Product using a computer that does not meet that minimum specification.

6.6          Espresso shall be entitled to use remote access tools for the purposes of providing support to the Customer and End-Users. Through its use of such remote access tools then Espresso shall be entitled to control relevant computers and view and change any settings on such computers. In carrying out such remote access support, Espresso acknowledges that it will only alter the configuration of any computer or other device on the customer's network with the prior consent of the Customer or End-User. Espresso will only be liable for those changes that it makes to settings (and not those made by any other person).

6.7          Where the parties agree (on the Order or otherwise) that Espresso is to provide training sessions to the Customer, the Customer shall only be entitled to receive such training sessions during the twelve month period commencing on the date of such agreement (the "Training Period"). Espresso shall use reasonable endeavors to agree to suitable dates for such training sessions during the Training Period. On expiry of the Training Period the Customer shall no longer be entitled to receive such agreed training sessions and shall not be entitled to any refund even where the Customer has made a payment in advance in relation to those training sessions.

7.             Access and Technical Issues

7.1          The Customer shall promptly upon request provide Espresso with the technical information required for Espresso to provide the Product, which includes, but is not limited to, the Customer's relevant IP (Internet Protocol) addresses, MAC (Media Access Control) addresses and such other information as Espresso may require from time to time. It is the Customer's responsibility to notify Espresso of any changes to the technical information the Customer has provided by email to techsupport@espressoeducation.com. Espresso shall not be liable for any failure to provide the Product where the Customer has failed to provide the requisite technical information for Espresso to provide the Product.

7.2          The Customer shall promptly upon request provide Espresso with such access to the Customer premises and networks as Espresso reasonable requires in order to install and/or configure any hardware, software or content relevant to the provision of the Product.

7.3          The Customer acknowledges that Espresso will not be responsible for the provision, maintenance or support of any server, other hardware, software, any broadband or other internet connection or any network connection. Under no circumstances will Espresso be deemed liable for any internet connection or call costs whatsoever or for any failure in the Product (or any element thereof) where the Customer has not complied or ensured compliance with the Minimum Specification.

7.4          If requested by the Customer, Espresso will provide a specification of the cache server and any software that Customer requires in order to be able to use the Product.

8.             Intellectual Property Rights

8.1          All trademarks, registered designs, patents, copyright, database rights, rights in databases, design rights, know how, trade and business names, moral rights, publication rights, performance rights, trade get-up, goodwill and any other similar protected rights in any country howsoever arising and all applications for any of the foregoing ("Intellectual Property Rights") in the Product shall vest and remain vested in Espresso or its licensors for the full term of the same and all renewals, extensions and continuations thereof and the Customer shall have no rights in respect of the Product save for the limited rights of use expressly granted in this Agreement.

8.2          The Customer acknowledges that "Espresso", "Channel 4 Learning" and other brands, cartoons, characters and animations used on the Product are subject to Intellectual Property Rights that are owned by Espresso or its licensors. The Customer may not use such Intellectual Property Rights without Espresso's prior written consent other than in its reasonable use of the "Espresso" trademark in documents and literature for internal distribution only for the purpose of providing teaching resources on a non-commercial basis.

9.             Charges

9.1          The Customer shall pay the charges annually in advance as calculated in accordance with the Order and this clause 10 ("Charges"). All amounts payable under this Agreement are expressed exclusive of any applicable sales taxes and other taxes, which shall be payable by the Customer at the applicable rate from time to time. Espresso shall be entitled to invoice the Customer annually in advance for the relevant Charges and all invoices shall be paid by the Customer within 30 days of the date of invoice.

9.2          If the Customer is exempt from all federal, state and local taxes, the Customer will make available to Espresso, upon request, copies of all relevant certificates demonstrating such tax-exempt status post execution hereof.

9.3          Espresso reserves the right to suspend provision of all or part of the Product without notice to the Customer if the Customer does not pay the Charges by the due date.

9.4          Espresso may charge the Customer interest on any overdue sums at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the relevant due date until the date payment is made.

9.5          Espresso shall be entitled to increase the Charges in relation to each Extended Term provided that it notifies the Customer at least 30 days in advance ("Charges Increase Notice"). Customer shall be entitled to terminate this Agreement by giving written notice of termination to Espresso within thirty (30) days of the date of the Charges Increase Notice, such termination to take effect only on the date immediately preceding the date that the relevant increase in Charges would otherwise have taken effect.

9.6          For the avoidance of doubt, Espresso shall not be responsible for sending the Customer any invoices in relation to anything other than the Charges for the Product. Where other services are provided by a third party the Customer shall be responsible for liaising directly with that third party in relation to the provision of those services and any invoices related to those services.

10.          Confidentiality

10.1        Each party shall keep all commercial, financial or other confidential information obtained from the other in connection with the Product ("Confidential Information") confidential. The Customer acknowledges that all information provided by Espresso in connection with the Product is Espresso's Confidential Information and that any pricing information is commercially sensitive, but the parties agree that such Confidential Information (other than any pricing information) may be made available by the Customer internally and to its End-Users with prior written consent to the extent necessary for their use of and access to the Product in accordance with the terms and conditions of this Agreement. The Customer further acknowledges that Espresso may disclose Confidential Information to its professional advisers, agents and subcontractors.

10.2        The obligations of confidentiality set out above shall not apply to the disclosure of Confidential Information to the extent required by law, any competent regulatory authority or recognized stock exchange, or if such information is in the public domain other than through breach of this clause.

10.3        In the event that the Customer receives a request for disclosure of Confidential Information under the Open Records Act (as applicable, the "Acts"), the Customer shall immediately notify Espresso of such request and forward a copy of such request to Espresso, attn: Legal Department. The Customer shall, upon receipt of any such request for disclosure of Confidential Information, use its best efforts to contest the disclosure of Confidential Information under all exceptions and/or exemptions, if any, that are applicable to such Confidential Information under the Acts.

11.          Exclusions and Limits of Liability

11.1        Nothing in this Agreement shall operate to limit or exclude either party's liability to the other for death or personal injury caused by that party's negligence, fraudulent misrepresentation or fraudulent concealment, or any liability which cannot be limited or excluded by law.

11.2        SUBJECT TO CLAUSES 11.3 AND 11.4, ESPRESSO'S TOTAL AGGREGATE LIABILITY TO THE CUSTOMER FOR ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF FORM OF ACTION AND WHETHER IN CONTRACT, TORT, WARRANTY OR OTHER LEGAL OR EQUITABLE GROUNDS (INCLUDING IN EACH CASE NEGLIGENCE) IS LIMITED IN ANY ONE YEAR FOR ALL SUCH CLAIMS ARISING WITHIN THAT YEAR TO AN AMOUNT EQUAL TO THE CHARGES PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM, OR, WHERE SUCH CLAIM ARISES AFTER EXPIRY OR TERMINATION, AN AMOUNT EQUAL TO THE CHARGES PAID BY THE CUSTOMER IN THE YEAR IMMEDIATELY PRECEDING THE DATE OF SUCH EXPIRY OR TERMINATION.

11.3        ESPRESSO'S TOTAL AGGREGATE LIABILITY TO THE CUSTOMER FOR ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THE PRODUCT REGARDLESS OF FORM OF ACTION AND WHETHER IN CONTRACT, TORT, WARRANTY OR OTHER LEGAL OR EQUITABLE GROUNDS (INCLUDING IN EACH CASE NEGLIGENCE) IS LIMITED IN ANY ONE YEAR FOR ALL SUCH CLAIMS ARISING WITHIN THAT YEAR TO AN AMOUNT EQUAL TO THE CHARGES PAYABLE IN RESPECT OF THE PRODUCT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM, OR, WHERE SUCH CLAIM ARISES AFTER EXPIRY OR TERMINATION, AN AMOUNT EQUAL TO THE CHARGES PAYABLE IN RESPECT OF THE PRODUCT IN THE YEAR IMMEDIATELY PRECEDING THE DATE OF SUCH EXPIRY OR TERMINATION.

11.4        ESPRESSO SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF PROFITS, ANTICIPATED SAVINGS OR GOOD WILL OR FOR ANY LOSS OR CORRUPTION OF DATA OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSS WHATSOEVER EVEN IF THAT PARTY WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

11.5        THE PRODUCT (INCLUDING THE PROVISION OF ANY EQUIPMENT OR SOFTWARE) IS PROVIDED ON AS "AS IS" AND "AS AVAILABLE" BASIS AND ESPRESSO DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  ESPRESSO DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.  ESPRESSO'S SOLE OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE PRODUCT ARE AS STATED IN THIS AGREEMENT AND ALL OTHER INNOCENT OR NEGLIGENT REPRESENTATIONS (BUT NOT FRAUDULENT), CONDITIONS, WARRANTIES AND TERMS EXPRESS OR IMPLIED WHETHER BY STATUE, LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION THOSE RELATING TO ACCURACY, MERCHANTABILITY AND FITNESS FOR PURPOSE OF THE PRODUCT) ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

12.          Termination

12.1        Either party may terminate this Agreement by notifying the other in writing if that other party materially breaches any of the terms of this Agreement and fails to remedy that material breach (if capable of remedy) within 14 days of the notice of the breach.

12.2        Espresso may terminate this Agreement (i) at any time by giving at least 60 days' prior written notice to the Customer and (ii) if Espresso discontinues the Product by giving the Customer reasonable notice. Within 30 days of any such termination by Espresso, Espresso shall refund to the Customer such proportion of the Charges that have been paid by the Customer and which reasonably relate to the period after termination for which the Agreement would have continued had it not been for such termination.

12.3        Espresso may at any time terminate this Agreement immediately on written notice to the Customer if Espresso becomes aware or reasonably suspects that any part of the Product infringes the Intellectual Property Rights of any third party.

12.4        Except as set out in Clause 12.5, upon termination of this Agreement the license to use the Product shall terminate and accordingly the Customer shall no longer be entitled to receive or use the Product or any part thereof and shall cease to use the Product and all parts thereof, and in each case this shall include the content referred to in clauses 4.1 and 4.2, the Documentation and any Updates. The Customer shall also promptly return to Espresso all Espresso Confidential Information and Documentation that is has in its possession.

12.5        The provisions of clause 8 (Intellectual Property), clause 10 (Confidentiality), clause 11 (Exclusions and Limits of Liability), clause 12 (Termination), and clause 13 (General) will survive any termination or expiration of this Agreement. Termination, howsoever arising, will not affect the rights and obligations of either party accrued prior to termination.

13.          General

13.1        Neither party will be liable for any failure or delay in performing its respective obligations under this Agreement to the extent that the failure or delay is the result of any cause or circumstance beyond its reasonable control. The rights, powers and remedies provided in the Agreement are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by law, or otherwise.

13.2        Neither party may assign or transfer its rights or obligations under this Agreement without the other party's prior written consent, except that Espresso may assign or transfer its rights and obligations under this Agreement without the Customer's consent to another member of the Espresso Group. "Espresso Group" shall mean Espresso, its Subsidiaries and its Holding Companies and their Subsidiaries (where "Subsidiary" and "Holding Company" shall be construed in accordance with English law as set out in s.1159 of the Companies Act 2006). Espresso may subcontract part or all of the performance of its obligations under this Agreement without notice to the Customer or requiring its consent.  Any unauthorized assignment or transfer shall be null and void.

13.3        This Agreement represents the entire terms agreed between the parties in relation to the Product and supersedes all other agreements, oral or written, and all other communications between the parties relating to the Product (or part thereof).

13.4        If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions of this Agreement which shall remain in full force and effect.

13.5        No failure or delay by either party in exercising any right or remedy under this Agreement (and no course of dealings between the parties) shall operate as a waiver of that right or remedy.

13.6        Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, and shall not be enforceable by any person who is not a party to it and neither party can declare itself a trustee of the rights under it for the benefit of any third party.

13.7        This Agreement is not intended to create a partnership or joint venture between the parties and neither party is authorised to act as the agent of the other.

13.8        The Customer agrees that Espresso may advertise its involvement with the Customer in Espresso's marketing materials, on the Espresso website and in press releases.

13.9        The Customer acknowledges that Espresso will be entitled to make changes to this Agreement at any time and the Customer will be subject to the then current terms and conditions as from the date that it enters into this Agreement and as from the date of each Extended Term (if any). The most recent version of Espresso's terms and conditions from time to time can be found at www.espressoeducation.com or as may be sent to Customer by Espresso from time to time. Where the Customer wishes to make any changes to the Agreement it may only do so by obtaining the prior written consent of Espresso.

13.10      All notices between the parties shall be in writing and addressed to the parties respective addresses as set out on the Order, or such other address as may be notified from time to time, and shall be sent by hand or post (notices being deemed to have been given 3 days after the date of posting).

13.11      This Agreement, and any dispute or claim arising out of or in connection with it (including any dispute or claim relating to non-contractual obligations) shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction.  Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement must be brought or otherwise commenced in any state court located in Cook County, Illinois, or any federal court located in Chicago, Illinois. Each party expressly and irrevocably consents and submits to the jurisdiction of each such state and federal court.

Updated 01/16/14