MOBILE/WEB APPLICATION

TERMS OF SERVICE
Effective date: July 31, 2013

THIS FOLLOWING USER AGREEMENT DESCRIBES THE TERMS AND CONDITIONS ON WHICH AN ESTUARY, LLC OFFERS YOU USE OF OUR MOBILE APPLICATION SOFTWARE AS WELL AS USE OF OUR WEBSITE AND ACCESS TO OUR SERVICES.

AN ESTUARY, LLC

 

TERMS OF SERVICE

Effective date: July 31, 2013

THIS FOLLOWING USER AGREEMENT DESCRIBES THE TERMS AND CONDITIONS ON WHICH AN ESTUARY, LLC OFFERS YOU USE OF OUR MOBILE APPLICATION SOFTWARE AS WELL AS USE OF OUR WEBSITE AND ACCESS TO OUR CONTENT, COURSES AND OTHER SERVICES.

This user agreement (“Agreement”) describes the terms and conditions for your use of our websites and services including the Sanderling mobile application, Branchkit website, An Estuary courses and course materials, and all the other websites, products, services and applications made available by An Estuary (collectively, the “Services”).  If you have any questions, comments, or concerns regarding these Terms of Service, please contact us at info@anestuary.com.  If you are not of legal age to form a binding contract (typically, 18 years or older), then you must get your parent or guardian to read these terms and agree to them for you.

These Terms of Service (the “Terms”) are a binding contract between you and An Estuary, Inc. (“An Estuary,” “we” and “us”). You must agree and accept all of the Terms, or you don’t have the right to use the Services. Your using the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services.  These Terms may change.  If you use the Services in any way after a change to the Terms is effective, then please remember that means you agree to all of the Terms.  Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

 

Acceptance of Terms

You may not use the Services if you do not agree to these Terms. You may accept these Terms by (a) selecting “I agree” to this Agreement, (b) using the Services in any way, such as downloading, using or accessing any content, materials, applications, or courses, or (c) by merely browsing the website.  These Terms are enforceable against you and, if applicable, to a particular Service, any legal entity on whose behalf the Services are used. Hello-Hello may discontinue or add new Services, aspects, or features to certain Services from time to time at its sole discretion.

 

Payment; Term and Termination

The Services are licensed and provided on a per course, per unit or subscription basis for the term or term(s) you may register for with respect to the Service.

For individual and enterprise users, we will bill your credit card or payment account the fee stated at the time of purchase, plus applicable tax, for Services ordered and the number of authorized or registered users included under your account.  All fees and charges are non-refundable regardless of whether you undertake to access or use the Services, complete any course you may register for, use any materials or applications accessed or licensed, or otherwise fail to participate in the Services.  For subscription based Services, your credit card or account will be billed, and your subscription will begin, for the number of licenses issued under your account as soon as you've successfully completed the sign-up process and your payment is confirmed.  We will automatically bill your credit card or account at the end of your subscription period and renew your subscription for the same subscription period unless cancelled by you prior to the applicable renewal date. Price(s) are subject to change at each renewal, but we will endeavor to notify you beforehand. If you ever need to cancel prior to your renewal date, just contact us at sales@anestuary.com.

In the event any amount due hereunder is not paid when due, interest equal to the lesser of the following rates: (1) 1.5% per month (pro-rated on a daily basis for any periods less than a month); or (2) the maximum rate allowed by applicable law, shall accrue on any payment not received by the due date.  You agree to pay all fees and expenses incurred by us in collecting any amounts due under this Agreement, including, but not limited to, attorneys’ fees associated therewith.

These Terms are effective upon your use of the Services and upon the posting dates of any subsequent amendments to this Agreement for all current users. Either you or we may terminate your access to the Service at any time, for any or no reason, without explanation or notice of any kind. Upon such termination by us, we may remove all of your information from our servers. We maintain sole discretion to bar your use of the Service in the future, for any or no reason. Even after your participation in the Service is terminated, this Agreement will remain in effect and will continue to govern, among other things, your right to use the Service including any software or mobile application.  In particular, we may, in our sole discretion and without prior notice, terminate your access to or use of the Service(s) and/or block your future access to the Services if we determine that you have violated these Terms or other agreements or guidelines which may be associated with your use of the Services.

If we do take any legal action against you as a result of your violation of these Terms, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted. You agree that we will not be liable to you or to any third party for termination of your access to the Service(s) as a result of any violation of these Terms.

 

Privacy - COPPA

COPPA requires that online service providers obtain parental consent before they collect personally identifiable information online from children who are under 13. Therefore, we only collect personal information through the Services from a child under 13 where that student’s school, district, and/or teacher has agreed (via the terms described in the following paragraph) to obtain parental consent for that child to use the Services and disclose personal information to us, for the use and benefit of the learning environment. If you are a student under 13, please do not send any personal information about yourself to us if your school, district, and/or teacher has not obtained this prior consent from your parent or guardian, and please do not send any personal information other than what we request from you in connection with the Services. If we learn we have collected personal information from a student under 13 without parental consent being obtained by his or her school, district, and/or teacher, or if we learn a student under 13 has provided us personal information beyond what we request from him or her, we will delete that information as quickly as possible. If you believe that a student under 13 may have provided us personal information in violation of this paragraph, please contact us at info@anestuary.com.

If you are a school, district, or teacher, you represent and warrant that you are solely responsible for complying with COPPA, meaning that you must obtain advance written consent from all parents or guardians whose children under 13 will be accessing the Services. You are responsible for understanding how any Publisher Software (defined and described below) that you install on behalf of yourself or other users may collect and use information of users of An Estuary’s Services. When obtaining consent, you must provide parents and guardians with our Privacy Policy and obtain all required consents. You must keep all consents on file and provide them to us if we request them.

If you are a teacher, you represent and warrant that you have permission and authorization from your school and/or district to use the Services as part of your curriculum, including the right to post Content related to your students and group members, and for purposes of COPPA compliance, you represent and warrant that you are entering into these Terms on behalf of your school and/or district.

A copy of the entire current An Estuary Privacy Policy is available at http://anestuary.com/privacy.html.

 

Your Representations

By using our Services including our website(s) and mobile applications, you represent that:

You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf, as we described earlier).

If you’re agreeing to these Terms on behalf of an organization or entity (for example, if you’re an administrator agreeing to these Terms on behalf of your district), you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms.

You promise to only use the Services for your personal, internal, non-commercial, educational use, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for you using the Services in a way that breaks the law.

You further agree that your User Submissions (as defined below) and your interactions when using the Service shall not: (a) be false, inaccurate or misleading; (b) infringe any third party's rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (c) violate any law, statute, ordinance or regulation; (d) be defamatory, trade libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive or illegal material; (e) contain any offensive anatomical or sexual references, or offensive sexually suggestive or connotative language; (f) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (g) create liability for us; and (j) link directly or indirectly to any other websites. We reserve the right, but We have no obligation, to reject or terminate Service to any user that does not comply with these prohibitions.

 

Intellectual Property

All materials displayed, performed on or provided in connection with the Services (including, but not limited to, text, graphics, articles, photos, images, illustrations, User Submissions (defined below), course materials, and so forth) (collectively, the “Content”) are protected by copyright and other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including An Estuary’s) rights.

You understand that An Estuary owns the Services including, without limitation, all Content with respect to its software products, applications, courses and course materials. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), creative derivative works based on, or otherwise exploit any of the Services.

In connection with your use of the Service or its contents, you will not (a) post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (b) remove any copyright, trademark or other proprietary rights notices contained in the An Estuary’s mobile application, software or with respect to the Service; (c) interfere with or disrupt the Services or the site or the servers or networks connected to the Services or the site; (d) post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service; (f) "frame" or "mirror" any part of the Service, or use meta tags or code or other devices containing any reference to us or the Service or the site in order to direct any person to any other web site for any purpose; (g) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the application, any course materials, or any software used on or for the Service or cause others to do so; or (h) use the Services in connection with any commercial endeavors whatsoever without our express prior written consent.

Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Some User Submissions are viewable by other users. In order to display your User Submissions on the Services, you grant us certain rights in those User Submissions. Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.

For all User Submissions, you hereby grant An Estuary a royalty-free, fully paid, unlimited and irrevocable license to use, translate, display, modify, distribute and reproduce such User Submission, in each case to enable us to operate the Services.

 

Responsibility for Content

Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information you may find offensive or inappropriate; and we accept no responsibility or liability for such activity.  If you experience or encounter any inappropriate material while using the Service, please contact us immediately at info@anestuary.com so we can endeavor to remedy the situation.  We also can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.  

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.

The Services may contain links or connections to third party websites or services that are not owned, operated, or controlled by An Estuary. When you access third party websites or use third party services (including, without limitation, your use of any third party developed software, i.e. “Publisher Software”), you accept that there are risks in doing so, and that An Estuary is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

An Estuary has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, An Estuary will not and cannot monitor, verify, censor or edit the content of any third party site or service (including without limitation the Publisher Software). By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.

Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties (including without limitation Publishers). You agree that An Estuary shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between participants on this site, or between users and any third party, you agree that An Estuary is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release An Estuary, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "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."

 

Warranty and Disclaimer; Limit of Liability

An Estuary does not make any representations or warranties concerning any content contained in or accessing through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from An Estuary or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product).

THE SERVICES, CONTENT, WEBSITE, AND ANY SOFTWARE ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL AN ESTUARY BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO AN ESTUARY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

 

Indemnity

You agree to indemnify and hold An Estuary, its affiliates, officers, agents, employees, contractors, and partners harmless for and against any and all claims, liabilities, damages (actual and consequential), losses, and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.  In the event of such a claim, suit, or action (“Claim”), we will provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

 

Assignment

You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder, or you’re an Estuary Services account, in any way (by operation of law or otherwise) without An Estuary’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

 

Choice of Law; Arbitration

These Terms are governed by and will be construed under the laws of the State of Maryland, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Baltimore, Maryland, in English, in accordance with the Arbitration Rules and Procedures of the American Arbitration Association ("AAA") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of AAA arbitrators in accordance with the Arbitration Rules and Procedures of AAA. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in Maryland.

 

Breach

Without limiting other remedies, we may terminate your ability to use the Service, remove your Information, warn our community of your actions, issue a warning, and refuse to provide our services to you if: (a) you breach these Terms or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; (c) we believe that your actions may cause financial loss or legal liability for you, our users or us; or (d) if we suspect that you have engaged in fraudulent or illegal activity in connection with the Services.

 

Miscellaneous

You will be responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and An Estuary agree that these Terms are the complete and exclusive statement of the mutual understanding between you and An Estuary, and that it supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms, and that all modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind An Estuary in any respect whatsoever. Except as expressly set forth herein, you and An Estuary agree there are no third party beneficiaries intended under this Agreement.