Gunwoo Tesol

Terms of Service

AGREEMENT

This Agreement shall specify the terms and conditions of use of the "Real-time Foreign Language Video Education Service (www.gwtesol.com)", hereinafter referred to as "the Platform", and other necessary matters provided by GWTESOL.

The rights to update the Terms and Conditions posted on the website is reserved for GWTESOL and Customer is bounded by the updated Terms and Conditions.

1. DEFINITION OF TERMS. The terms used in this agreement shall be defined as follows:

“Acceptable Use Policy” means that certain policy governing the use of GWTESOL electronic resources, including software, hardware devices and network systems, the most current version.
“Administrative Staff” means any and all individuals employed by or otherwise providing services for or on behalf of GWTESOL or Participant and/or Student.
“Affiliate” means any entity controlling, controlled by or under common control with another entity. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of an entity whether through the ownership of voting securities, registered capital, contract or otherwise.
“Agreement” shall mean these Terms and Conditions together with any Statement of Work, Educational Services Quote, or any other agreement or price quotation agreed to by the Parties to which these Terms and Conditions are attached and/or into which these Terms and Conditions are incorporated into by reference, together with any amendments, modifications, or renewals of such Statement of Work, Educational Services Quote, or other agreement or price quotation.
“Authorized Users” shall mean the Participant, Student, Trainers and Administrative Staff who are authorized to access the Platform, the Content and Courses pursuant to these Terms and Conditions and this Agreement.
 “Certified” when used with respect to TESOL Trainers shall mean that such teachers are certified TESOL trainers.
“Confidential Information” shall mean proprietary business, technical and financial information of each of the Parties, including for example and without limitation, each Party’s respective information concerning: (a) business strategy and operations such as business plans, methods, marketing strategies, outreach plans and sales information, pricing information and customer and prospect lists, the identities and locations of vendors and consultants providing services or materials to or on behalf of the disclosing Party; (b) product development such as product designs and concepts; (c) financial information such as budget and expense information, economic models, pricing, cost and sales data, operating and other financial reports and analysis; (d) human resource information such as compensation policies and schedules, employee recruiting and retention plans, organization charts and personnel data; (e) educational content, curricula, teaching outlines, lesson plans, testing processes and procedures; (f) Student Records and other Student-related personal information; (g) the terms of this Agreement; (h) login and password information for the Platform; (i) technical information such as development methods, computer software, research, inventions, the design and operation of the Platform; and (j) other similar non-public information that is furnished, disclosed or transmitted to the receiving Party or to which the receiving Party is otherwise given access by the disclosing Party, orally, in written form, in any type of storage medium, or otherwise. Confidential Information, in whatever form provided, shall remain the exclusive property of the disclosing Party at all times, and the Parties hereby acknowledge and agree that all such Confidential Information of a Party are its trade secrets. Except as specifically provided for herein, nothing contained in this Agreement or herein shall be construed as granting or conferring any rights in any Confidential Information disclosed to the receiving Party, by license or otherwise.
 “Content” means the components of a Course, designed, developed, owned or provided by GWTESOL and its third party content partners and delivered in an online format through the Platform or in an offline format (textbooks and other materials) to teach Students in various courses or to deliver resources in connection with the Services. Content may include courseware, data, documentation, text, audio, video, graphics, animation, drawings, programming, icons, images, pictures, charts, and, in the case of Courses delivered via GWTESOL Platform sessions. GWTESOL reserves the right to add Content, withdraw Content, modify and/or offer substitute Content, in its sole discretion.
“Course” means a program of instruction provided by GWTESOL, which includes Content accessed through a Platform and may include support from Trainers, as specified in the applicable Agreement.
“Participant and/or Student” means any person who is enrolled in one or more Courses offered by GWTESOL under the terms of this Agreement.
“Derivative Works” include any translation, editorial revision, annotation, elaboration, or other modification, correction, addition, enhancement, extension, condensation, upgrade, improvement, compilation, abridgement or other form in which the Content may be recast, transformed or adapted, including but not limited to all forms in which such Derivative Works may or may not infringe any of the copyrights in the Content.
“Educational Products and Services” shall mean the educational products and/or services to be provided by GWTESOL to Customer pursuant to the Agreement to which these Terms and Conditions are attached and/or into which these Terms and Conditions are incorporated by reference.
“Educational Services Quote” shall mean that certain document identified as an Educational Services Quote, provided by GWTESOL to Customer and accepted by Customer, setting forth certain Educational Products and Services being obtained by Customer from GWTESOL as well as such other business terms to which the Parties agree to be bound.

“GWTESOL” means the website or Learning Management System (also sometimes referred to as Education Management System) with the URL http://www.gwtesol.com, or such other URL as GWTESOL or its Affiliates may designate from time to time, through which Authorized Users access the Content and Platform via a secure password-protected website. This also pertains to the name of the Company.
“Intellectual Property” means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide now or in the future, including but not limited to, moral rights and similar rights.
“Platform” means the applicable learning management system implemented by GWTESOL that is used to deliver Content to Participant and/or Student under the Agreement.
“Privacy Policy” means that certain statement of GWTESOL’s practices for handling personally identifiable and non-personally identifiable information gathered by GWTESOL through the Platform or any website maintained by GWTESOL from time to time. GWTESOL’s Privacy Policy is in accordance to the Republic Act of 10173.
“Resources” means Service Delivery Resource and relates to any tools, instructions, assessments or other support materials used in the delivery of Services, either through the Platform or otherwise.
“Session” shall mean the session related to the courses offered by GWTESOL as defined by the training schedules under which Participant and/or Student operates.
 “Services” means any service provided by GWTESOL to Participants and/or Students, under the terms of this Agreement between Customer and GWTESOL.
“Statement of Work” shall mean that certain document identified as a Statement of Work, executed by Participant and/or Student and GWTESOL, setting forth certain Educational Products and Services being obtained by Participant and/or Student from GWTESOL as well as such other business terms to which the Parties agree to be bound.
“Student” means any person who is enrolled in one or more Courses offered by GWTESOL under the terms of this Agreement.
“Trainers” shall mean the persons employed by GWTESOL who virtually provide educational instruction to Students. 
“Terms of Use” means certain rules governing how Authorized Users and the Participant and/or Student may and may not use the applicable Platform and any Content accessible through such Platform. The Terms of Use are accessible from the log-in page for the applicable Platform.
“Training Schedule” shall be the days when any Services under this Agreement will be delivered to Participants and/or Students, as agreed to by the Parties. GWTESOL will provide Services on those days established to be the School Calendar for the Academic Year. The School Calendar for each Academic Year shall be as approved by Customer and GWTESOL taking into account all reasonable comments and suggestion by GWTESOL and shall meet any regulatory requirements for days and hours of instruction required by law or regulation.
“User” A person who has applied for a service and has been granted a membership ID by the GWTESOL.

“Website” means the GWTESOL website with the URL https://www.gwtesol.com and any subpages connected thereto.

2. GRANT OF RIGHTS AND RESTRICTIONS.

a. License. Pursuant to this Agreement, GWTESOL hereby grants to Customer a non-exclusive, nontransferable, royalty-free, limited license during the applicable term of this Agreement for Authorized Users to access and use the applicable Platform identified in the Agreement 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 this Agreement and the Terms of Use.

GWTESOL may update the features and functions of the applicable platform from time to time.

Any right to use Content shall be solely for the applicable Courses for which a Student is enrolled.

GWTESOL 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 Authorized Users pursuant to this Agreement and these Terms and Conditions, are reserved to GWTESOL, and any use of the applicable Platform or any Content therein by Participant and/or Student and Authorized Users not expressly granted in this Agreement and these Terms and Conditions are strictly prohibited.
Specifically, Participant and/or Student, Authorized Users, Participant’s employees or agents or any third party to: (i) access the platform except in connection with Courses for which a Participant and/or Student is enrolled; (ii) use Content except in strict compliance with this 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, expressly permitted by this Agreement and the Terms of Use; (iv) decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine the source code and/or the underlying ideas, algorithms, structure or organization) of the Content or the Platform; (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 Platform 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 Platform or the Content, nor allow or assist a third party to do so; (vii) use the Content in a manner that disparages the Platform, the Content, GWTESOL or its content providers, or in any manner that GWTESOL 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 Platform and/or the Content by unauthorized persons using an Authorized User’s Log-In Information.
Any act or omission in contra version of Republic Act 10173 and Republic Act 8792 are prohibited.

c. Usage Guidelines and Rules of Conduct. Participants, including its employees and agents, and Authorized Users may use the applicable Platform and the Content for bona fide educational and other authorized purposes only. Participant and/or Student shall comply and assure compliance by its employees, agents and the Authorized Users of this Agreement, including these Terms and Conditions, Terms of Use, Privacy Policy and other applicable GWTESOL policies, including but not limited to, the extent applicable based on the Educational Products and Services for which Customer has agreed. 
Participant and/or Student that GWTESOL may also institute basic rules for academic and personal conduct for Authorized Users’ use of the Content and the Platform, and likewise Participant and/or Student acknowledge that GWTESOL shall enforce these rules in its sole discretion, including recommending to Participant and/or Student the termination of access for Authorized Users in the event of their failure to adhere to said 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 Platform, as well as, hacking, viral infection, or other technical attempts to gain unauthorized access to or cause damage to the Platform.

Participant and/or Student shall immediately provide GWTESOL with written notice, within 42 hours, any unauthorized use or distribution of the Content of which Participant and/or Student becomes aware and shall take all necessary steps to ensure that such unauthorized use or distribution is terminated within 72 hours.

d. Security and Use of Passwords. Each Authorized User shall have a user name and password for the purpose of accessing the Platform and the Content, the “Log-In Information”.

Participant and/or Student 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. Non-compliance to this is deemed in contra version of RA 10173.

Participant and/or Student and its Authorized Users are responsible for maintaining the security and confidentiality of all Log-In Information, and for preventing access to the Platform and/or the Content by unauthorized persons using an Authorized User’s Log-In Information.

Unauthorized access or use of the Platform and/or the Content by someone using an Authorized User’s Log-In information may be attributed to such Authorized User and Participant and/or Student.

e. Availability and Support. GWTESOL does not guarantee availability of the Platform 24 hours per day, 7 days per week. Unless other support terms are specified by GWTESOL from time to time. The time of use of the real-time image learning service is limited. The GWTESOL may set the time available for each database, in which case the content will be posted by the Company and published online or separately, excluding holidays. GWTESOL will respond to general support issues within one (1) business day, after which they will be escalated as may be specified by GWTESOL from time to time. The contact for escalation of support issues will be as designated by GWTESOL.

f. Communications from GWTESOL. Participant and/or Student acknowledges and agrees that GWTESOL may periodically contact Authorized Users for customer service purposes. By accessing the Platform and/or Content, Participant and/or Student and Authorized Users shall consent to receive such communications.

3. CUSTOMER RESPONSIBILITIES.

a. Fees and Taxes. Participant and/or Student will pay all fees incurred under this 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. Participant and/or Student will be responsible for all forms of tax in connection with the Educational Products and Services provided by GWTESOL under this Agreement, other than taxes on GWTESOL’s income. If Participant and/or Student claims tax exempt status, Participant and/or Student agrees to provide GWTESOL with evidence of such tax exemption upon GWTESOL’s request. To the extent that such tax exemption cannot be properly claimed or does not extend to certain taxes or transactions, Participant and/or Student shall be responsible for any and all taxes that arise from this Agreement and related transactions (excluding taxes on GWTESOL’s income). All pricing set forth in any quotation, Agreement, or invoice is in Philippine Peso unless otherwise specified.

b. Hold Harmless. Participant and/or Student agrees that it shall defend, indemnify and hold GWTESOL 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 GWTESOL, 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 Participant and/or Student, its agents, employees, or assigns in the execution or performance of this Agreement; (ii) noncompliance with any privacy or other laws applicable to personally identifiable information; and (iii) any activities unrelated to the Educational Products and Services provided by GWTESOL, including, but not limited to, activities sponsored or approved by Participant and/or Student, regardless of whether such sponsorship or approval was direct, indirect, express, or tacit.

4.1 PAYMENTS CREDITS AND REFUNDS
Participant and/or Student agrees to use a valid payment method to make a payment and refund of payment can only take place within the period of 21 days before the session starts thru bank transfer.

a. Payments. Participant and/or Student agrees to pay the fees for the course that you purchase through bank deposit, and you authorize us to charge your bank account for those fees.

When Participant and/or Student enrolls in a course, Participant and/or Student agrees not to use an invalid or unauthorized payment method. If payment method fails and Participant and/or Student still gets access to the course they are enrolling in, Participant and/or Student agrees to pay GWTESOL the corresponding fees within thirty (21) days of notification from us. We reserve the right to disable access to any course for which we have not received adequate payments.

b. Refunds and Credits. If Participant and/or Student cancels enrollment on a course and requests for a refund, refund of payment shall only take place within the period of 21 days before the course starts and it will be delivered thru bank transfer. We reserve the right to apply a refund, at our discretion, depending on the platform from which you purchased your course. No refund is due to you if you request it after the 21-day guarantee time limit has passed.

At the Company’s discretion, and believe that the Participant and/or Student is abusing the GWTESOL refund policy, GWTESOL reserve the right to ban the Participant and/or Student account and to restrict all future use of the Services. If GWTESOL ban Participant and/or Student account or disable its access to a course due to violation of these Agreement and Terms of Use, Participant and/or Student will not be eligible to receive any refund.

4.2 AUDIT. GWTESOL will have the right, with ten (10) days prior notice, to audit the Participant and/or Student usage of the Platform and the Content at Participant and/or Student’s location(s). If any audit determines that the Participant and/or Student has not complied with the terms of the applicable Agreement, Participant and/or Student will promptly pay GWTESOL any amount that is due. Participant and/or Student shall also reimburse GWTESOL for its cost in conducting the audit, in the event the audit determines a shortfall over five percent (5%), in the amount paid to GWTESOL.

5. ACADEMIC INTEGRITY. Participant and/or Student acknowledges that with respect to all Participants and/or Students enrolled in GWTESOL, GWTESOL shall be the sole decision maker with respect to all questions, issues, conflicts, or concerns relating to academic integrity and performance.

6. TERMINATION.

a. Term. The term of this Agreement, including any potential renewal periods, will be as specified in this Agreement.

b. Terminations for Cause. Except as otherwise provided in this Agreement, either GWTESOL or Participant and/or Student may terminate the Agreement at any time for cause upon thirty (30) days notice, unless the circumstances constituting the basis for the 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. Notwithstanding the foregoing, GWTESOL may terminate the Agreement immediately upon written notice to Participant and/or Student in the event of a breach by Participant and/or Student of confidentiality or a violation by RA 10173 and the Intellectual Property rights. Such remedy shall not be deemed to be the exclusive remedy for a breach of this 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 this 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. GWTESOL may, at its option, immediately terminate, or suspend its performance of, this Agreement with Participant and/or Student any time Participant and/or Student is more than thirty (30) days in arrears on its payment obligations to GWTESOL. In the event of termination or suspension by GWTESOL under this Section 6.d., Participant’s and/or Student’s access to the Platform, including all Authorized Users whose right of access to the Platform is derived from GWTESOL’s contractual relationship with Participant and/or Student, shall be discontinued without further notice. In the event of a suspension of access to the Platform, access may, at the sole discretion of GWTESOL, be restored when Participant’s and/or Student’s payment obligations are brought current and GWTESOL has received adequate assurances that Participant’s and/or Student’s payment obligations to GWTESOL shall remain current for the remainder of the term of the Agreement.

e. Termination due to Change in the Law. GWTESOL reserves the right to terminate this Agreement in the event any new legal obligation is imposed upon GWTESOL during the Agreement term and as a result of such new legal obligation, there is a material change to GWTESOL’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 GWTESOL, or at its option, or if requested by Participant and/or Student, 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. Obligations on Termination. In the event that this Agreement is terminated by either GWTESOL or Participant and/or Student 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 this Agreement, and all electronic copies shall be permanently removed from all electronic data storage devices; (ii) all access to the Platform, Content, and Courses by Participant and/or Student 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) Participant and/or Student shall pay GWTESOL all amounts due under this Agreement upon the earlier of their due dates or thirty (30) days after the effective date of termination. Termination of this 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 this 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. GWTESOL and Participant and/or Student acknowledge and agree that the Parties have certain obligations with regard to maintaining the security, integrity and confidentiality of “education records”. GWTESOL and Participant and/or Student each designate the staff, employees, agents, subcontractors and volunteers who are providing educational and/or administrative services to the Participant and/or Student having a legitimate educational interest and thus entitled to access to educational records. GWTESOL and Participant and/or Student shall also maintain Student Records in accordance with any other applicable laws and regulations.

c. 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.

d. 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 GWTESOL.

8. INTELLECTUAL PROPERTY

a. Ownership of Intellectual Property. Participant and/or Student acknowledges and agrees that GWTESOL or its Affiliates and/or their third party vendors are the sole owners of the Platform, the Content and Courses, and any other content or materials contained in or delivered to Participant and/or Student through the Platform or otherwise in connection with the Agreement, collectively this “GWTESOL Intellectual Property”. Except for the limited rights granted in this Agreement, neither this Agreement, nor these Terms and Conditions, constitutes a license or other transfer by GWTESOL to Participant and/or Student of any Intellectual Property rights in GWTESOL IP. All right, title, and interest in and to the GWTESOL IP, including, but not limited to, copyright, patent, trade secret, and trademark rights will remain with GWTESOL and its third party vendors, and Participant and/or Student will use the GWTESOL IP only as authorized under this Agreement and will not otherwise violate any copyrights or other Intellectual Property rights of GWTESOL. Any attempted sublicense, assignment or transfer by Participant and/or Student of any rights hereunder or in this Agreement without GWTESOL’s prior written consent shall be void. Participant and/or Student shall not remove any copyright, patent, trademark, or any other proprietary rights legends from the GWTESOL 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. Trademarks. GWTESOL and Participant and/or Student 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 Participant’s and/or Student’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 this Agreement. All use of the other Party’s Licensed Marks shall be in accordance with any trademark usage guidelines provided by the other Party. 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 Participant and/or Student 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 GWTESOL provides in furtherance of its obligations set forth in this Agreement. Participant and/or Student funds paid to GWTESOL for products delivered and/or services rendered in accordance with the terms of this Agreement shall not be deemed Participant and/or Student funds once such payment is received by GWTESOL.

e. Student Data. Student specific data is the property of the Participant and/or Student, unless, and to the extent that, GWTESOL obtains such data from a source other than the Participant and/or Student. GWTESOL will not use any such Participant and/or Student specific data for any non-Platform related purpose without obtaining the written permission of such Participant and/or Student. Use for Participant and/or Student related purposes shall include any use associated with GWTESOL’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. GWTESOL may freely aggregate Participant and/or Student owned 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 Participant and/or Student. All such aggregated data shall be the property of GWTESOL. GWTESOL may freely use all such aggregated data without the consent of Participant and/or Student.

9. REPRESENTATIONS AND WARRANTIES. Participant and/or Student represents and warrants that: (i) it has full power and authority to enter into this 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 GWTESOL to obtain and retain information (including personal information) from Authorized Users; (ii) only Authorized Users will access the Platform and the Content; (iii) Participant and/or Student and its Authorized Users will at all times use the Platform and the Content only as expressly permitted by the Agreement and these Terms and Conditions; (iv) in the event that Participant and/or Student requests that GWTESOL customize the interface with Participant’s and/or Student’s trade name, trademarks or logos, and/or digitize and/or encode and/or host any of Participant’s and/or Student’s content on the Platform and GWTESOL agrees to do so, Participant and/or Student 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 “Participant and/or Student Intellectual Property”; and (v) the Participant and/or Student 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. Participant and/or Student will defend, indemnify and hold GWTESOL, 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 GWTESOL that arise from or relate to: (i) any violation by Participant and/or Student and/or its Authorized Users of this Agreement or these Terms and Conditions; (ii) any downloading of the Content except as authorized in this 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 GWTESOL; (v) any breach of Participant’s and/or Student’s obligations or warranties under this Agreement or these Terms and Conditions; or (vi) the negligence or intentional misconduct of Participant and/or Student, its employees or contractors, agents or the Authorized Users.
b. Subject to Section 12, GWTESOL will defend, indemnify and hold Participant and/or Student, 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 Participant and/or Student that solely arise from or solely relate to: (i) a material breach by GWTESOL of its obligations or warranties (subject to the disclaimer provided for in Section 11) under this Agreement or these Terms and Conditions, or (ii) the negligence or intentional misconduct of GWTESOL or any of its employees, contractors and agents.

11. WARRANTY DISCLAIMER. PARTICIPANT AND/OR STUDENT CANNOT ASSUME THE PERFORMANCE OF THE PLATFORM OR OTHER SUCH TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY PROBLEMS RELATED THERETO WILL BE CORRECTED, DESPITE GWTESOL’S REASONABLE EFFORTS. ACCORDINGLY, EXCEPT FOR ANY EXPRESS WARRANTIES GIVEN IN THE AGREEMENT: (a) THE PLATFORM AND THE CONTENT PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” TO THE MAXIMUM EXTENT PERMITTED BY LAW; AND (b) GWTESOL 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, NON-INFRINGEMENT, COURSE OF DEALING, OR COURSE OF TRADE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER GWTESOL NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE PLATFORM AND THE CONTENT PROVIDED UNDER THIS AGREEMENT WILL MEET ANY REQUIREMENTS OR NEEDS THAT PARTICIPANT AND/OR STUDENT OR THE AUTHORIZED USERS MAY HAVE, OR THAT THE PLATFORM AND THE CONTENT WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE PLATFORM AND THE CONTENT WILL BE CORRECTED, OR THAT THE PLATFORM AND THE CONTENT ARE COMPATIBLE WITH ANY PARTICULAR OPERATING SYSTEM. FURTHER, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GWTESOL MAKES NO GUARANTEE OF ACCESS TO OR ACCURACY OF THE CONTENT ACCESSED THROUGH THE PLATFORM. IN NO EVENT WILL GWTESOL BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ALTERNATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE PLATFORM.

12. LIMITATION OF LIABILITY. FOR ANY BREACH OR DEFAULT BY GWTESOL OF ANY OF THE PROVISIONS OF THIS AGREEMENT OR THESE TERMS AND CONDITIONS, OR WITH RESPECT TO ANY CLAIM ARISING THEREFROM OR RELATED THERETO, GWTESOL’S ENTIRE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, 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 THIS AGREEMENT OR THESE TERMS AND CONDITIONS, THE AMOUNT PAID BY PARTICIPANT AND/OR STUDENT UNDER THIS AGREEMENT. IN NO EVENT WILL GWTESOL 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 GWTESOL, ITS AFFILIATES, OR ITS THIRD PARTY VENDORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE OTHERWISE FORESEEABLE. GWTESOL WILL BE LIABLE TO PARTICIPANT AND/OR STUDENT AS EXPRESSLY PROVIDED IN THE AGREEMENT OR THESE TERMS AND CONDITIONS, BUT WILL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, OR OTHERWISE TO CUSTOMER INCLUDING ANY LIABILITY FOR NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT WILL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION, BY PARTICIPANT AND/OR STUDENT, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, AND WILL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS 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 GWTESOL TO PARTICIPANT AND/OR STUDENT.

13. RELEASE. Participant and/or Student releases and waives all claims against GWTESOL, 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 Participant’s and/or Student’s use of the Platform and Content.

14. GENERAL PROVISIONS.

a. Independent Contractors. The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture, franchise, or employee-employer relationship is intended or created by this 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 Participant and/or Student except with the prior written consent of GWTESOL and any attempted transfer, assignment or delegation without the required consent shall be void. This 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. This 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. This 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 this 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 this Agreement or of any subsequent default or breach of the same or a different kind.

g. Surviving Obligations. All accrued payment obligations under this Agreement, any remedies for breach of this Agreement, and the following Sections will survive any expiration or termination of this 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 16 (General Provisions).

i. Force Majeure. If the performance of this Agreement, or any obligation under this Agreement, except the making of payments and compliance with Intellectual Property rights of a Party, is prevented, restricted, interfered with or delayed by reason of any law, natural disaster, labor controversy, encumbered Intellectual Property right, government action or failure to act, war or any similar event beyond its reasonable control but shall not include change in law, government action or failure to act (“Force Majeure Event”), failure to perform shall not be deemed a breach of or default under this Agreement, and neither Party shall be liable to the other. 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, Participant and/or Student or GWTESOL may elect to terminate this 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. This 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 this 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 this 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 this 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 this Agreement without the prior written consent of the other Party. However, Participant and/or Student agrees that GWTESOL may make reference to its business relationship with Participant and/or Student in GWTESOL’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 this 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 this 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.

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