Last updated August 28, 2019

ABOUT

BNED LoudCloud, LLC ("LoudCloud") provides access to and use of its BNED Courseware websites and applications (web, mobile, or others), including the LoudCloud Learning Platform, ("Services") to users ("Users"), subject to these terms and conditions ("Terms"). Your access to and use of the Services is conditional on your acceptance of and compliance with these Terms. By accessing or using the Services, you agree to be bound by these Terms.

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of changes or modifications will confirm your acceptance of such changes or modifications.

LIMITED LICENSE

The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, including content owned or licensed by LoudCloud and made available through the Services ("LoudCloud Content"). Subject to your compliance with the Terms, LoudCloud grants you a limited, personal, non-transferable, non-sublicenseable and non-exclusive right and license to access and use the Services and LoudCloud Content. This limited license does not apply to Educational Materials (defined below), which do not constitute "LoudCloud Content."

This limited license does not include the right to reverse engineer, reverse assemble, otherwise attempt to discover, modify, or use any modified version of any source code underlying or forming any part of the Services. Further, the limited license does not include the right to use, alter, remove, or obscure any branding, logos, or legal notices displayed in the Services.

EDUCATIONAL MATERIALS

You agree that software underlying or provided through the Services may not be acquired, shipped, transported, exported, or re-exported (a) into (or to a national or resident of) any U.S. embargoed country or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By using the Services, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

The Services contain content provided by LoudCloud or third parties, including e-text, videos, interactive assessments, and other supplemental materials, that is made available through the Services ("Educational Materials"). Certain Educational Materials may contain specific restrictions on use identified by notices accompanying such Educational Materials. Educational Materials are offered for license to you by the author of that work on the terms and conditions set forth in the Creative Commons or other license associated with such Educational Materials. You are required under U.S. copyright law and other equivalent laws to respect the copyrights of those authors and to use the Educational Materials subject to the terms and conditions of their respective licenses and applicable law. You may only copy, modify, distribute and otherwise use the works in the Services in accordance with the applicable license or as may otherwise be permitted under applicable law.

LoudCloud endeavors to provide information about the copyright status of the Educational Materials available to you on LoudCloud Courseware, and to identify any other terms and conditions that may apply to your use of such materials. However, LoudCloud offers no guarantee or assurance that all pertinent information is provided or that the information provided is correct in each circumstance. In all cases, it is your sole responsibility to determine what permission(s) you may need in order to use Educational Materials available from LoudCloud Courseware and, if necessary, to obtain such permission(s).

With regard to any Educational Materials that you contribute to LoudCloud or add to, delete from, revise or otherwise create derivative works from ("Contributions"), you represent and warrant that the Contributions are (i) your original creation, or constitute open educational resources under the Creative Commons 4.0 International Public License ("Creative Commons CC BY") or original, faculty-authored content licensed under the Creative Commons CC BY domain, (ii) compliant with Web Content Accessibility Guidelines (WCAG) 2.0 standards, and (iii) do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or rights of a third party, including the rights of publicity or privacy, or violate any applicable laws. All Contributions you provide to LoudCloud will be distributed under a CC BY NC SA 4.0 license. Without limiting the generality of the foregoing representations and warranties in this section, you represent and warrant that any and all Contributions submitted by you, when distributed or otherwise used by LoudCloud as described herein, do and will comply with the CC BY NC SA 4.0 license.

If you contribute any metadata - such as author name, title of work, year of completion of the work, and the like - in connection with Contributions or otherwise, you grant to LoudCloud a perpetual, worldwide, royalty-free, irrevocable license to reproduce, distribute, publicly display, publicly perform, create derivative works of, transfer, sublicense, and make any other use in any form or medium of such metadata, without restriction of any kind.

USER CONTENT; COPYRIGHT INFRINGEMENT

The Services may include access to information, data, text, graphics, photographs, video, software, audio, messages, communications, or other materials uploaded, transmitted, shared, or otherwise made available by Users on or through the Services ("User Content"). For sake of clarity, Contributions do not constitute "User Content." All User Content that you make available through the Services remains your sole property or the property of your licensors. By making available any User Content, you automatically grant and/or warrant that the owner of that User Content has granted LoudCloud the perpetual, royalty-free, and non-exclusive right and license to use, modify, reproduce, publish, distribute, perform, display, and transmit that User Content through the Services.

By making available any User Content, you also automatically grant and/or warrant that the owner of that User Content has granted other Users the perpetual, royalty-free, and non-exclusive right and license to access, view, and use that User Content within the Services.

You agree that User Content is the sole responsibility of the User who made it available and that you are responsible for User Content you make available and for any consequences thereof. You agree that LoudCloud does not control or monitor transmissions of User Content or accept any responsibility for their storage, content, quality, accuracy, integrity, security, privacy, errors, omissions, or any loss or damage resulting therefrom. Accordingly, LoudCloud cannot and does not ensure that User Content is without objectionable aspects, and you acknowledge and agree that LoudCloud is not liable for such material whatsoever. LoudCloud shall have no responsibility or liability of any kind regarding any links to other websites that become available through the Services or any content, products, or materials contained therein.

If you are a copyright owner who would like to send us a notice pursuant to the Digital Millennium Copyright Act ("DMCA") to identify content or material posted on the Services that is infringing and that you would like removed from our Services, or if you are a user whose work has been removed in response to such a notice of infringement and would like to file a DMCA counter-notice, you may submit such notice to us by following these instructions.

We are committed to complying with U.S. Copyright and related laws. Our policy is to respond to notices of alleged infringement that comply with the DMCA. It is our policy to remove and discontinue service to repeat offenders. If you believe your copyrighted work has been copied and is accessible on the Services in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in accordance with the requirements of the DMCA:

1. The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf.
2. A description of the copyrighted work that you claim has been infringed and a description of the infringing activity.
3. Identification of the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the website where it is posted or the name of the book in which it has been published).
4. Identification of the URL or other specific location on the Services where the material you claim is infringing is located (note: you must include enough information to allow us to locate the material).
5. Your name, address, telephone number, and email address so that we may contact you.
6. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
7. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.

Our agent for notice of claims of copyright infringement on the Services can be reached as follows:

By mail:

Barnes & Noble Education, Inc.
120 Mountain View Blvd.
Basking Ridge, NJ 07920
Attn: Legal Department

By email: [email protected].

The contact information above is only for reporting copyright infringement and may not be used for any other purpose.

If you believe an individual is a repeat infringer, please follow the instructions above to contact our DMCA agent and provide information sufficient for us to verify the individual is a repeat infringer.

It is often difficult to determine if your copyright has been infringed. BNED may elect to not respond to DMCA notices that do not substantially comply with all of the foregoing requirements, and BNED may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

If access on the Services to a work that you submitted to BNED is disabled or the work is removed as a result of a DMCA copyright infringement notice, and you believe in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then you may send a "Counter-Notification" to the email address listed above. Your DMCA Counter-Notification should contain the following information:

1. a legend or subject line that says: "DMCA Counter-Notification";
2. a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the full URL of the page(s) on the Services from which the material was removed or access to it disabled);
3. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
4. your full name, address, telephone number, email address, and the username of your account with us (if any);
5. a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of New York), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
6. your electronic or physical signature.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the address above that the party who sent us the DMCA copyright infringement notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Services.

Upon our receipt of a Counter-Notification that satisfies the requirements of DMCA, we will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA's procedures regarding counter notification. All Counter-Notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act. In all events, you expressly agree that neither BNED nor any of its affiliates or their employees, officers, directors, or agents will be a party to any disputes or lawsuits regarding alleged copyright infringement.

Please note you may be held liable for money damages if you materially misrepresent an activity is infringing your copyrights.

OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

You agree that using or accessing the Services does not give you ownership of any intellectual property rights in the Services, LoudCloud Content, or User Content of others.

PROHIBITED USE

You agree that using or accessing the Services, LoudCloud Content, Educational Materials, or User Content of others for any purpose except those expressly granted herein as permissible is expressly prohibited. You agree that the following uses of the Services are expressly prohibited and constitute material breach of these Terms:

1. a. Conduct that violates of any applicable local, state, national, or international laws or regulations, including but not limited to infringement of the intellectual property rights or publicity rights of others;
2. b. Transmitting any material that is unlawful, harmful, obscene, threatening, harassing, abusive, slanderous, or defamatory to any other person or entity, as determined by LoudCloud;
3. c. Transmitting viruses, spamware, adware, ransomware, time bombs, or any other files designed to interrupt, limit, or destroy the functionality of any computer software or hardware, including but not limited to the functionality of the Services;
4. d. Use of any automatic device, program, algorithm, methodology, or any similar manual process, including but not limited to robots, spiders, crawlers, deep linking, or page scraping to access, acquire, copy, or monitor any portions of the Services, LoudCloud Content, Educational Materials, or User Content; and
5. e. Circumventing the navigational structure or presentation of the Services, LoudCloud Content, Educational Materials or User Content to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Services.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LOUDCLOUD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (b) LOUDCLOUD MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; AND (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICES OR LOUDCLOUD SHALL CREATE ANY WARRANTY.

LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT LOUDCLOUD SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF LOUDCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR OTHER SERVICES OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) DELETION OR FAILURE TO STORE ANY USER CONTENT OR OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED VIA THE SERVICES OR BY LOUDCLOUD; (e) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (f) ANY OTHER MATTER RELATING TO THE SERVICES.

EXCLUSIONS AND LIMITATIONS

THE FOREGOING "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" PROVISIONS MAY NOT APPLY TO CONSUMERS WITHIN THE STATE OF NEW JERSEY OR IN OTHER JURISDICTIONS WHERE PROHIBITED BY LAW.

INDEMNIFICATION FOR BREACH

You shall indemnify, defend with counsel of LoudCloud's choice, and hold harmless LoudCloud and its respective officers, directors, affiliates, subsidiaries, employees, licensors, suppliers, and partners from any losses, costs, liabilities, and expenses, including reasonable attorneys' fees, relating to or arising out of (a) User Content that you make available, (b) your use of or inability to use the Services, (c) your breach of these Terms, (d) your violation of any rights of any other party, including other Users, or (e) your violation of any applicable laws, rules, or regulations.

CHOICE OF LAW

These Terms shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law provisions. You agree to submit to the exclusive jurisdiction of the courts in New York County, New York State. You agree that any cause of action arising out of or related to the Services or these Terms must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

WAIVER AND SEVERABILITY

No waiver by LoudCloud of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of LoudCloud to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

If any provision of Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited, to the minimum extent, to reflect the intentions of the parties as nearly as possible, such that the remaining provisions of these Terms will continue in full force and effect.

NO THIRD-PARTY BENEFICIARIES OF RIGHTS GRANTED TO YOU

No right granted to you under these Terms is enforceable by third parties, and no third party is an intended beneficiary of any rights or obligations of you under these Terms.

ATTRIBUTION AND OPEN SOURCE DISCLOSURES

The Services uses HighStock by Highsoft Solutions AS. http://www.highcharts.com/. LoudCloud is not affiliated with, endorsed by, or sponsored by Highsoft Solutions AS.

The Services includes certain third-party code licensed for use and redistribution under open-source licenses, including:

Apache Jackrabbit 2.2.10. Licensed under the Apache 2.0 License, available here: http://www.apache.org/licenses/LICENSE-2.0.

OpenFire 2.8.0. Licensed under the Apache 2.0 License, available here: http://www.apache.org/licenses/LICENSE-2.0.

ActiveMQ 5.7. Licensed under the Apache 2.0 License, available here:http://www.apache.org/licenses/LICENSE-2.0 http://www.apache.org/licenses/LICENSE-2.0.

Firefox Spellchecker 1.0.0 Beta. Licensed under the Mozilla Public License (MPL) 1.1, available here: https://www.mozilla.org/en-US/MPL/1.1/.

Information regarding Creative Commons licenses when specified as applying to LoudCloud Content is available here: https://creativecommons.org/licenses/.