Effective Date: August 1, 2020

Emtrain® Terms of Service

These Terms of Service (these “Terms”) govern your use of the Emtrain website (the “Site”), the Emtrain platform (containing courses, micro-lessons, videos and questions/answers) and associated tools (collectively, the “Service”) made available by Emtrain, Inc. Your use of the Service indicates that you agree on behalf of yourself or the entity that you represent (collectively, “you”) to be bound by these Terms as well as the Emtrain Privacy Policy. Please read these Terms carefully before registering for or otherwise using the Emtrain Service.

I. Overview

Emtrain provides a platform of online education addressing ethics, respect and inclusion topics. Emtrain is offered in two versions:

    • Emtrain Micro Lessons. Complimentary Emtrain micro lessons are available for free when you register with Emtrain and set up a user account. The user registration process requires that you agree to these Terms.
    • Emtrain Whole Culture. A premium version of Emtrain is available on a paid basis via an annual subscription. Emtrain Whole Culture allows an enterprise, division or team to sponsor and administer training courses or lessons to employees on 20+ topics that cover the tricky culture issues of ethics, respect and inclusion.  See our detailed catalog for the topics addressed by our Whole Culture Library.

II. Registration

Use of the Service, whether Micro Lessons or Whole Culture, requires that you register with Emtrain. When you register with Emtrain, you will be asked to disclose certain personal information, including your name and email address, and to set up a user name and password, all of which will be subject to our Privacy Policy. You are responsible for all activities that occur under your account and for keeping your password and log-in information secure. You agree that you (1) will monitor your account, (2) will not share your account or password with anyone, and (3) will notify Emtrain immediately of any unauthorized use of your account or password, or any other breach of security. You agree to provide us with true, accurate and complete information as requested in our registration process. You also agree to update such information promptly as necessary to keep it current and accurate.

III. Payment

If you register for Emtrain Whole Culture, you agree to pay all fees or charges to your account for the Service in accordance with the fees, charges and billing terms in effect at the time that each fee or charge is due and payable. Unless otherwise indicated in an order form, you must provide Emtrain with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) as a condition to signing up for Emtrain’s Whole Culture. Your Payment Provider agreement governs your use of the designated credit card account, and you must refer to that agreement and not these Terms to determine your rights and liabilities with respect to your Payment Provider. By providing Emtrain with your credit card number and associated payment information, you agree that Emtrain is authorized to verify information immediately, and subsequently invoice your account for all fees and charges due and payable to Emtrain hereunder and that no additional notice or consent is required. You agree to immediately notify Emtrain of any change in your billing address or the credit card used for payment hereunder. Emtrain reserves the right at any time to change its prices and billing methods, either immediately upon posting on our Site or by e-mail delivery to your organization’s administrator(s).

Any attorney fees, court costs, or other costs incurred in collection of delinquent undisputed amounts shall be the responsibility of and paid for by you.

All fees for the Service are non-refundable. No contract will exist between you and Emtrain for the Service until Emtrain accepts your order by a confirmatory e-mail or other appropriate means of communication.

You are responsible for any third-party fees that you may incur when using the Service.

IV. User Conduct, Commitments and Understandings

      • You agree not to access (or attempt to access) any of the Service by any means other than through the user interface that is provided by Emtrain (this applies even when hosting Emtrain’s service through a third party learning platform)
      • You, directly or indirectly, alone or with any other party, may not:
          1. modify, change, create derivative works of, disassemble, decompile or otherwise reverse engineer the Service or any software provided in connection with the Service (“Software”), or remove proprietary legends in the Service or Software;
          2. distribute, transfer, resell, rent, lease, or loan the Service or Software to any other party, except as described herein;
          3. make the Service or Software available to others in a service bureau arrangement or for any similar commercial time-sharing or third party training use;
          4. harass, threaten or otherwise cause distress, unwanted attention or discomfort to a person or entity;
          5. post or otherwise transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party;
          6. post or otherwise transmit any content that (i) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (ii) you do not have the right to transmit, such as information that is subject to a confidentiality agreement between you and another party; (iii) contains sexually explicit images or other content that is offensive; (iv) is harmful to minors in any way; or (v) promotes or provides instructional information about illegal activities or promotes physical harm or injury against any group or individual;
          7. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
          8. violate (intentionally or unintentionally) any applicable local, state, national or international law including, but not limited to, any regulations having the force of law; or
          9. interfere with or disrupt the Service or Software, or servers or networks connected to the Software, or disobey any requirements, procedures, policies or regulations of networks connected to the Service or Software.
      • You agree that you are solely responsible for (and that Emtrain has no responsibility to you or to any third party for) any breach of your obligations under these Terms and for the consequences (including any loss or damage which Emtrain may suffer) of any such breach.
      • While Emtrain uses reasonable efforts to include accurate and up-to-date information on the Site, Emtrain makes no warranties or representations as to its accuracy. Emtrain assumes no liability or responsibility for any errors or representations in the content available on the Site (the “Content”).
      • The Site may contain links to other sites on the Internet which are owned and operated by Third Party Vendors and other third parties (the “External Sites”). You acknowledge that Emtrain is not responsible for the availability of, or the materials located on or through, any External Sites. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or the materials located on such External Sites.
      • You acknowledge that by accessing the Site, you may come into contact with content that you find harmful, offensive, threatening, indecent or objectionable and you acknowledge that Emtrain shall have no liability to you for the content including, but not limited to explicit language and other potentially offensive material. The user agrees not to impersonate any person or communicate under a false name or a name the user is not entitled or authorized to use. Emtrain has the right (but not the obligation) to remove, prohibit, edit or discontinue any content on the Site, including content that has been posted by users.
      • At your discretion, you may provide feedback to Emtrain concerning the functionality and performance of the Service from time to time, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). If you, through your evaluation or otherwise, suggests any Feedback, you hereby assign the ownership in all Feedback to Emtrain.
      • Emtrain may at any time revise these Terms by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the current Terms to which you are bound.
      • You shall not transmit to Emtrain or upload to this Site any Harmful Code or use or misappropriate the data on this Site for your own commercial gain. “Harmful Code” shall mean any software (sometimes referred to as “viruses,” “worms,” “trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is intentionally designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding a number of copies, (ii) exceeding a number of users, (iii) passage of a period of time, (iv) advancement to a particular date or other numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission.
      • You may not use your username and password for any unauthorized purpose.VI. Monitoring and Enforcement; Termination
        Emtrain has the right to terminate or suspend your access to all or part of the Service or the Site for any violation of these Terms.

VI. Monitoring and Enforcement; Termination

Emtrain has the right to terminate or suspend your access to all or part of the Service or the Site for any violation of these Terms.

VII. Intellectual Property Rights

Emtrain reserves all rights not specifically granted herein. You shall not modify any copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings, and other indicia of ownership on the Content or other materials accessed through the Service. The delivery of, and license to, the Content and/or access to third party materials does not transfer to you any commercial or promotional use rights in the Content or any portion thereof. Any use of Content, or descriptions; any derivative use of this Site or its materials; and any use of data mining, robots, or similar data gathering and extraction tools is strictly prohibited. In no event shall the user frame any portion of the Site or any materials contained therein.

As between the parties, Emtrain owns and shall continue to own all right, title and interest in and to all aggregate and statistical information or analyses created and developed by Emtrain from performance, usage and employee sentiment data generated through your use of the Site, Service or Software (collectively, “Aggregate Data”). Aggregate Data is de-identified so that you cannot be identified as the source within the Aggregate Data.

VIII. Governing Law

Your use of the Service and these Terms shall be governed by, and construed in accordance with, the internal laws of the State of California without reference to the choice of law or conflicts of law principles thereof, and all claims relating to or arising out of your use of the Service or these Terms, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of California without reference to the choice of law or conflicts of law principles thereof.

IX. Disclaimer of Warranties

THE MATERIALS, CONTENT ON THIS SITE AND SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. EMTRAIN SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CONTENT, MATERIALS POSTED ON THE SITE OR SERVICES. EMTRAIN MAKES NO GUARANTEES AS TO UPTIME OR AVAILABILITY OF THE SERVICE. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO THE APPLICABLE LAW, EMTRAIN DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHER VIOLATION OF RIGHTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EMTRAIN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, AND DENIAL OF SERVICE (DOS) ATTACKS.

X. Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, SHALL EMTRAIN OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS SITE OR THE SERVICE, EVEN IF EMTRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

EMTRAIN’S ENTIRE AND AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT YOU HAVE PAID TO EMTRAIN FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED, EVEN IF EMTRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IF YOUR USE OF MATERIALS FROM THIS SITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

XI. Entire Agreement; Modifications

These Terms constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. Each provision of these Terms is a separately enforceable provision. If any provision of these Terms is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for these Terms to remain in effect in accordance with its terms as modified by such reformation. These Terms may not be modified, supplemented, amended or interpreted by any trade usage or prior course of dealing unless specifically agreed upon in writing. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of these Terms.

XII. Force Majeure

Emtrain shall not be liable to you for any delay or failure of Emtrain to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Emtrain. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder.

XIII. Dispute Resolution

The state or federal courts sitting in San Francisco County, California shall have exclusive jurisdiction and venue over any dispute arising out of these Terms and sale, and you hereby consent to the jurisdiction of such courts. Any dispute, controversy or claim arising under, out of or relating to these Terms and any subsequent amendments of these Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules. The place of arbitration shall be San Francisco, California. The language to be used in the arbitral proceedings shall be English. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. These Terms do not constitute a waiver of any of your rights and remedies to pursue a claim individually in binding arbitration, but not as a class action. This provision preventing you from bringing, joining or participating in any class action lawsuits is an independent covenant. You may opt-out of this Section by providing written notice of your decision within thirty (30) days of the date that you first use the Site or Service.

XIV. Questions and Comments

If you have any questions regarding these Terms, please contact Emtrain by emailing experts@emtrain.com.

XV. Notices

All notices regarding these Terms and the Service will be provided in writing to you by e-mail using the contact information provided by you upon registration or by posting on the Site. Notice will be deemed given one (1) business day after e-mail transmission from Emtrain, or two (2) business days after the date of posting.