This License and Use Agreement (this “Agreement”) is between you (“you” or “Customer”, which for the avoidance of doubt, also refers to, as applicable: your school, school district, college, university or other educational institution for which you act as a duly authorized representative or agent; users of the Lrnr Learning Sites or the Lrnr Learning Products (defined below) in accordance with the terms of this Agreement and the applicable Order Form(s) (defined below)) and Lrnr (Pochys Ventures Inc.) (as defined below) with regard to any of the Lrnr Sites (as defined below). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. By using any Lrnr Site or by clicking “Agree” you accept and agree to these terms, you signify your acknowledgment and agreement with the terms and conditions of this Agreement, as of the date on which you click or otherwise fill in the box(es) at the end of this Agreement.
By clicking “Agree” (from website) or by signing the agreement, you agree and acknowledge that you have been properly authorized and empowered by Customer and all other applicable Persons (as defined below) to enter into this Agreement. Each of Lrnr and Customer are individually referred to herein as a “Party,” and collectively, the “Parties”.
WHEREAS, Lrnr is the authorized licensee and/or owner and/or publisher and distributor of certain online or digital educational software products carrying one of its and/or its Partner’s (as defined below) brands;
WHEREAS, Customer desires to purchase a perpetual, non-transferable, non-exclusive license from Lrnr, without the right of sublicense, to use the Lrnr Product(s) under the terms and conditions set forth in this Agreement (the “License”); and
WHEREAS, Lrnr desires to grant the License to Customer.
NOW, THEREFORE, in consideration of the terms and conditions of this Agreement, the premises contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
- Certain Definitions
- “Agreement” shall mean this License and Use Agreement, the exhibits hereto and the applicable forms ancillary hereto, including but not limited to, the product quote provided by Lrnr (the “Quote”); purchase order from Customer in respect of the Lrnr Product(s) (the “Customer PO”); and the notice of activation of Lrnr Product(s), access start and end dates, and user name and passwords (the “Activation Notice”), as the case may be (the Quote, the Customer PO and the Activation Notice, collectively referred to herein as the “Order Form(s)”), in respect of any and all Lrnr products or services being utilized by Customer, all of which are hereby incorporated herein by this reference.
- “Person” means any association, corporation, individual, limited liability company, partnership, trust or other nongovernmental entity or any non-governmental agency, court, authority or other body (whether foreign, federal, state, local or otherwise).
- “Lrnr”, “we,” “us” or “our” refers to Pochys Ventures Inc., a Delaware corporation, and any and all entities that control, are controlled by, or are affiliated or under common control with, Pochys Ventures Inc.
- “Lrnr Product(s)” means any and all Lrnr products to be accessed via the Lrnr Sites, including without limitation, Lrnr, Lrnr Application (Lrnr app), BuddyPrep, each as modified and/or updated by Lrnr from time-to-time. The specific product(s) of Lrnr covered by this Agreement are identified on the Order Form(s).
- License; Restrictions
- Grant of License. Subject to Customer’s timely payment of all applicable fees and compliance with the terms and conditions of this Agreement, Lrnr hereby agrees to grant, and Customer agrees to accept, the License, subject to the terms and conditions set forth in this Agreement.
- Use of License. The Lrnr Product(s) shall be used solely for the type(s) and number of users as set forth in the applicable Order Form(s) (collectively, the “Authorized Users”) and solely for educational or instructional purposes.
- Customer Obligations; Prohibited Uses. Except as expressly provided in this Agreement, Customer shall:
- not directly or indirectly (or allow any third party to) disclose or provide any Lrnr Product(s) to any Person other than the Authorized Users;
- not directly or indirectly (or allow any third party to) license, sublicense, loan, sell, lease, rent, transfer, share or assign any Lrnr Product(s) or any portion thereof to any Person;
- not directly or indirectly (or allow any third party to) alter, reverse engineer, disassemble, decompile or copy, or in any way modify or attempt to discover the source code of, any Lrnr Product(s) or the underlying software, documentation or data related thereto;
- not directly or indirectly (or allow any third party to) add to, modify, delete any portion of or make derivative works based upon any Lrnr Product(s);
- not directly or indirectly (or allow any third party to) use any Lrnr Product(s) or allow any Person to use Lrnr Products for any commercial purposes or in any manner not set forth in this Agreement, including without limitation to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any Lrnr Product(s), or (c) copy any ideas, features, functions or graphics of any Lrnr Product(s);
- take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Lrnr Product(s);
- not directly or indirectly (or allow any third party to) reproduce on or remove from any copies of the Lrnr Product(s), any or all titles, trademarks and copyright and other proprietary or restrictive legends or notices;
- limit access to the Lrnr Product(s) to the Authorized Users and who have agreed in writing or are otherwise legally bound to observe Customer’s obligations hereunder and, in connection therewith, require all Authorized Users to agree to and abide by the terms and conditions of that certain end user agreement substantially in the form attached hereto as Exhibit A; and
- take commercially reasonable best efforts to monitor, abide by and enforce all of the foregoing provisions.
- Intellectual Property Rights
- Intellectual Property Rights. All title to and rights and interests in the Lrnr Products are the exclusive proprietary property of Lrnr and its partners. Lrnr is the licensee and/or exclusive owner of all copyright, trademark, patent and other intellectual property and proprietary rights in and to the Lrnr Products, all good will associated there with, and any derivative work thereof. Customer acknowledges that Lrnr asserts that the Lrnr Products embody valuable confidential and trade secret information of Lrnr, the development of which required the expenditure of considerable time and money. All trademarks appearing in or on the Lrnr Products are the property of Lrnr and its respective third party owners. Lrnr disclaims any affiliation or endorsement of such third parties’ goods or services and does not intend to imply any third party’s endorsement of the goods and services of Lrnr. Nothing in this Agreement shall be interpreted as a transfer of any of the aforementioned intellectual property or proprietary rights from Lrnr to Customer. No part of any Lrnr Products may be reproduced in whole or in part, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from Lrnr.
- Security Measures. Lrnr may from time to time implement password protection, anti-copying subroutines or other security measures for the Lrnr Products, and Customer shall cooperate with any such measures that are part of the Lrnr Product as of the date it is licensed to Customer.
- Audit Rights. Lrnr shall have the right, from time to time, upon five (5) days’ prior notice to Customer, to audit Customer’s usage of Lrnr Products so as to ensure compliance with the provisions of this Agreement.
- Injunctive Relief. Customer specifically agrees that in the event of a breach or threatened breach by Customer of its obligations under Section 2 or Section 3 of this Agreement, Lrnr could suffer substantial and irreparable damage, which could be of a character, which could not be fully compensated for solely by a recovery of money damages. Accordingly, Customer hereby expressly agrees that in the event of a breach or threatened breach of Section 2 or Section 3 of this Agreement, in addition to and not in lieu of any damages that may be sustained by Lrnr, and any other remedies which Lrnr may pursue hereunder at law or in equity, Lrnr shall have the right to seek equitable relief, including issuance of a temporary or permanent injunction, by any court of competent jurisdiction against the commission or continuance of any such breach or threatened breach, without the necessity of the posting of any bond or other surety therefor. In addition to, and not in limitation of the foregoing, Customer understands and confirms hereby that, in the event of any breach or threatened breach of Section 2 or Section 3 of this Agreement, you hereby agree to indemnify Lrnr for any losses suffered by Lrnr as a result thereof, including, without limitation, all reasonably attorney’s fees, court costs and disbursements incurred as the result of any such breach or threatened breach of Section 2 or Section 3 of this Agreement.
- Intellectual Property Indemnification. Subject to the provisions of Section 8 below, Lrnr shall indemnify and hold Customer and its governing administrative body, Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims (and all resulting costs, damages awarded to third parties, third party liabilities and expenses, including attorneys’ fees and costs) arising out of infringement (or alleged infringement) by Lrnr of any third party patent, copyright, trademark or trade secret rights, provided in any such case that Customer: (a) gives written notice of the claim promptly to Lrnr; (b) gives Lrnr sole control of the defense and settlement of the claim (provided that Lrnr may not settle or defend any claim unless Lrnr unconditionally releases Customer of all liability); (c) provides to Lrnr all available information and assistance; and (d) has not compromised or settled such claim. Notwithstanding clause (c) above, Customer shall have the right at its own cost to assume defense of such third party claim(s) in the event (i) Lrnr is also a party to the same proceeding and Customer determines in good faith that joint representation would be inappropriate or (ii) Lrnr fails to provide reasonable assurance to Customer of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding.
- Customer shall pay Lrnr the then applicable fees for the use of the Lrnr Product(s) and other products and services as noted on Customer’s applicable Order Form(s), including any applicable shipping fees and taxes (the “Fees”). Customer must pay within thirty (30) days of invoice date for the Lrnr Product(s) stated in the Order Form(s) or other agreement between the Parties. All pricing terms are confidential, and the Parties agree not to disclose said pricing terms to any third party (excluding its Affiliates, agents or current or potential investors on an as-needed basis).
- Lrnr charges and collects Fees in advance for use of the Lrnr Products. Customer shall be responsible for all taxes associated with its use of Lrnr Product(s) other than U.S. taxes based on the net income of Lrnr. If Customer is an organization that is exempt from sales tax, it is Customer’s responsibility to include a copy of the sales tax exemption form with the applicable Order Form(s), without which Lrnr shall charge sales tax to Customer as applicable. Customer agrees to provide Lrnr with complete and accurate billing and contact information. This information shall include Customer’s legal name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within thirty (30) days of any changes thereto. If the contact information Customer has provided is false, fraudulent or misleading, Lrnr reserves the right to suspend or terminate Customer’s access to the Lrnr Products in addition to any other legal remedies. Customer will be billed in U.S. dollars and subject to U.S. payment terms. Late fees shall be subject to a finance charge of the lesser of one and five tenths percent (1.5%) per calendar month and the greatest amount allowed by applicable law.
- Term; Termination.
- This Agreement and the License shall have a term commencing on the date as of which Customer receives initial access to the applicable Lrnr Product(s) and shall continue for the term specified on the applicable Order Form(s). Either Party hereto may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days from receipt of written notice thereof. Section 2, Section 3 and Sections 6 through 11 (inclusive), as well as all accrued payment obligations and any and all license and use restrictions shall survive the termination or expiration, as the case may be, of this Agreement. In the event Customer terminates within thirty (30) days from initial access to the applicable Lrnr Product(s), Customer shall be eligible for a full refund.
- Lrnr may terminate this Agreement at any time without cause by providing at least thirty (30) days prior written notice to Customer. Upon termination under this Section 5(b), the License shall also terminate. Section 2, Section 3 and Sections 6 through 11 (inclusive), as well as all accrued payment obligations through the date of termination and any and all license and use restrictions shall survive the termination or expiration, as the case may be, of this Agreement.
- Representations and Warranties.
- Each Party represents and warrants to the other Party that it has the legal right, power and authority to enter into this Agreement and that the Person signing on behalf of each such Party is duly authorized to bind such Party.
- Customer represents and warrants to Lrnr that it has taken or will take such steps as are necessary to ensure that the requisite prior written consents have been obtained from the parents or the legal guardians of any and all Authorized Users, as applicable (e.g., natural persons under the age of 18).
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, LRNR PROVIDES all LRNR PRODUCT(S) “AS IS” and without warranty of any kind, AND LRNR hereby disclaims all OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL SUBJECT MATTER OF THIS AGREEMENT, including, without limitation, THE warranties of merchantability, fitness for a particular purpose, and non-infringement. This disclaimer of warranty constitutes an essential part of this Agreement.
- Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (I) INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, (II) COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, OR (III) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO LRNR DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES. THE LIMITATIONS ON LIABILITY CONTAINED IN THIS SECTION 8 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 9 OR CUSTOMER’S BREACH OF SECTION 2 OR SECTION 3 OR ANY LICENSE OR USE RESTRICTIONS HEREUNDER.
- Confidentiality. “Confidential Information” means all information that (i) the disclosing Party designates as being confidential, or which (ii) by the nature of the information or the manner in which it is disclosed, should be reasonably understood by the receiving Party to be confidential. The receiving Party shall maintain the confidentiality of the disclosing Party’s Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing Party. The receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 9 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the receiving Party independently from the Confidential Information, (iii) is disclosed to the receiving Party by a third party, which third party is not subject to an obligation in favor of the disclosing Party to keep such Confidential Information confidential, or (iv) was in the receiving Party’s lawful possession prior to the disclosure by the disclosing Party. The receiving Party may disclose Confidential Information as required by law or court order provided that, to the extent permitted by law, it provides the disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon disclosing Party’s request, the receiving Party shall return to disclosing Party (or destroy and certify destroyed) all of the disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to perform its obligations, under this Agreement; provided that, all such third parties are bound by obligations of confidentiality and non-use at least as protective of such as this Agreement.
- Export Control. Customer acknowledges and agrees that the Lrnr Products shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo, or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. If Customer uses the Lrnr Products from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Lrnr Products contrary to United States law is strictly prohibited.
- Notices. Notice required or desired to be given by the Parties under this Agreement shall be in writing and will be mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, by U.S. express mail or a nationally recognized overnight mail service (e.g., FedEx), or transmitted by hand delivery, or facsimile transmission addressed as follows:
- If to Lrnr:
Pochys Ventures Inc. (Lrnr)
47 Shoal Drive E
Vallejo, CA 94591
Attention: Business operations
Facsimile: (201) 840-5015
- If to Customer, as set forth in the applicable Order Form(s).
- Any Party may designate by written notice to the other Party(ies) a new address to which any notice may thereafter be given.
- Force Majeure. Neither party hereto shall be held responsible for any delay in performance of any part of this Agreement to the extent such delay results from causes beyond its reasonable control and without its fault or negligence (“Force Majeure Event”) provided, however, that the non-performing Party shall act diligently and in good faith to (i) minimize potential cost, loss or damage to the other Party due to such non-performance and (ii) perform its obligations under this Agreement as soon as the Force Majeure Event has subsided or can be avoided.
- Press Release. Customer hereby agrees and consents to the use of Customer’s name in a press release by Lrnr which may announce Customer’s use of Lrnr Products. Customer grants Lrnr the right to use Customer’s name on any of its Web sites (and in Lrnr marketing material) as part of the Lrnr customer list.
- Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.
- Assignment. Neither Party hereto may assign this Agreement without the express written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may, without the express written consent of the other Party, assign all its rights and obligations hereunder to: (a) any of its Affiliates; (b) any entity that results from a merger or consolidation with such Party; or (c) any purchaser or other acquirer of substantially all of such Party’s assets or equity, provided that such assignee agrees to be bound by the terms and conditions of this Agreement as a condition to such assignment.
- Entire Agreement; Amendments; Nature of Relationship. Both Parties agree that this Agreement and the Attachments hereto, as well as the applicable Order Form(s) in respect of any of the Lrnr Products constitute the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications 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 this Agreement, Customer does not have any authority of any kind to bind Lrnr in any respect whatsoever, and Lrnr does not have any authority of any kind to bind Customer in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable actual costs including attorneys’ fees.
- No Waiver. No waiver of any provision of this Agreement by either party shall be deemed a further or continuing waiver of such provision or any other provision, and either Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- Headings. The headings throughout this Agreement are for reference purposes only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
- Governing Law. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Lrnr and Customer hereby agree that the exclusive and sole jurisdiction and venue for all disputes arising under this Agreement shall be the state and Federal courts located in Vallejo, California. Lrnr and Customer hereby waive the right to a jury trial.
- Counterparts. This Agreement may be executed in one or more original, facsimile or electronic counterparts (i.e., portable document format, or pdf), all of which when taken together shall constitute one document.
END USER LICENSE AGREEMENT
1 INTRODUCTION; GENERAL
This End User License Agreement (this “Agreement”) is between you, the user of any of the Lrnr Sites (“you” which includes your parents or legal guardians if you are under the legal age of majority) and us with regard to any of the Lrnr Sites. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING ANY LRNR SITE. By using any Lrnr Site or by clicking a box that states that you accept or agree to these terms, you signify your acknowledgment and agreement with the terms and conditions of this Agreement.
Note that special terms apply to some services offered on certain Lrnr Sites, like subscription-based services or other features or activities. These special terms are posted in connection with the applicable service or other features or activities. Any such terms are in addition to the terms of this Agreement, and in the event of a conflict, prevail over the terms of this Agreement.
Unless you are visiting the Lrnr Site that specifically allows otherwise, you are of over the age of 18, or your parent or legal guardian has provided any and all necessary consents to permit your usage of Lrnr Sites.
You acknowledge that your acceptance of the terms and conditions of this Agreement are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of Lrnr Sites and receipt of data, materials and information available at or through Lrnr Sites.
1 USE OF CONTENT
All information, materials, functions and other content contained on Lrnr Sites (“Content”) are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may change the Lrnr Sites or delete Content or features at any time, in any way, for any or no reason.
Except as we specifically agree in writing, no Content may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Lrnr Site, except that where a Lrnr Site is configured to enable the download of particular Content, you may download one copy of such Content to a single computer for your personal, noncommercial home use only, provided that you: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Content; and (c) do not use the Content in a manner that suggests an association with any of our products, services or brands. Any business use, “re-mailing” or high-volume or automated use of Lrnr Sites is prohibited.
In the event that we offer downloads of software on a Lrnr Site and you download such software, such software, including any files, images incorporated in or generated by such software, and data accompanying such software (collectively, the “Software”) are licensed to you by us or third-party licensors, as applicable, for your personal, noncommercial home use only for educational or instructional purposes only. We do not transfer title to the Software to you. You shall not distribute or otherwise exploit the Software or decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-readable form.
Some services on the Lrnr Sites may permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the “Registration Data”). You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You also agree to promptly notify us at email@example.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to any Lrnr Site. In addition, you agree to exit from your account at the end of each session.
1 CONTENT ACCESSIBLE THROUGH LINKS FROM LRNR SITES AND SEARCH RESULTS
You agree that we cannot be held responsible for the accuracy, relevance, legality or decency of material contained on sites retrieved in searches and/or listed in search results or identified on search results pages.
THE CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO LRNR SITES OR ANY THIRD PARTY SITES OR SERVICES LINKED TO FROM ANY LRNR SITE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY LRNR SITE OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY INFORMATION YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
1 LIMITATION OF LIABILITY
1 JURISDICTIONAL AND VENUE ISSUES
1 GENERAL PROVISIONS
Supply of goods, services and software through Lrnr Sites is subject to U.S. export control and economic sanctions requirements. By acquiring any such items through Lrnr Sites, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements. Without limiting the foregoing, you may not acquire goods, services or software through Lrnr Sites if: 1) you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan or Syria or if you are on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department’s Denied Persons List, Unverified List or Entity List; or 2) you intend to supply the acquired goods, services or software to Cuba, Iran, North Korea, Sudan or Syria (or a national or resident of one of these countries) or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List or Entity List.
TERMS OF SERVICE
The following terms (the “Lrnr Terms”) apply to the adaptive learning services (the “Lrnr Services”) provided by Pochys Ventures, Inc. (“Lrnr”).
Agreeing to the Lrnr Terms. Because several users of Lrnr Services may be under 13, Lrnr has the following important rules in place about who must agree to the Lrnr Terms:
• Anyone who is 13 years or older must agree to the Lrnr Terms before using the Lrnr Services.
• Anyone who is under 13 years old may use the Lrnr Services only if (a) their parent or guardian has agreed to the Lrnr Terms or (b) they are a student and are being provided Lrnr Services in connection with their school activities and their teacher or other school representative has agreed to the Lrnr Terms on the school’s behalf where permitted under the Family Educational Rights and Privacy Act.
• By agreeing to the Lrnr Terms, you represent that you have the authority and legal capacity to do so. If you are agreeing to the Lrnr Terms as a parent or guardian, then you will be responsible for your child’s use of the Lrnr Services and other obligations and commitments under the Lrnr Terms. If you are agreeing to the Lrnr Terms as a teacher or instructor or other school or college or university representative, then you represent that you are agreeing to the Lrnr Terms on your institution’s behalf and that your educational institution will be responsible for its student’s use of the Lrnr Services and other obligations and commitments under the Lrnr Terms.
• The Lrnr Terms constitute a binding legal agreement between Lrnr and you (or the school or college or university or educational institution on whose behalf you are agreeing to the Lrnr Terms).
• Lrnr’s Technology. Lrnr has created powerful technology that allows Lrnr to personalize online education for users. When it is integrated with online course materials, Lrnr’s technology causes the presentation and focus of the course materials to adapt based on the user’s needs and how they learn best, and also provides analytic reporting to help track the user’s progress. This technology is key to the Lrnr Services.
Integration With Enterprise Partners. The Lrnr Services are provided to users through integrations with the course materials and online learning applications of Pochys Ventures Inc. and other schools, publishers and other third parties (each the “Enterprise Partner”, collectively, the “Enterprise Partners”). Each user’s use of such course materials and online learning applications is subject to terms agreed to in a separate agreement between the user and the applicable Enterprise Partner. Lrnr is not responsible for any of the products or services of any Enterprise Partners.
Sharing of Information With Enterprise Partners. In order for Lrnr to provide the Lrnr Services to a user, Lrnr needs to receive information from the applicable Enterprise Partner regarding the user’s interactions with such Enterprise Partner’s course materials and online learning materials, and, in some cases, a unique identifier that the Enterprise Partner has assigned to the user. In turn, as part of the Lrnr Services, Lrnr provides the Enterprise Partner with recommendations and analytics that are personalized to the user. You agree that Lrnr and the Enterprise Partners may share information for these purposes.
Lrnr Profiles. Lrnr creates a personalized learning profile for each user based on their interactions with course materials that use Lrnr’s adaptive learning technology. In cases where a Lrnr Account (as described below) has been created, Lrnr may be able to apply this personalized learning profile to multiple online learning courses that the user takes and which use Lrnr’s adaptive learning technology. If no Lrnr Account has been created, then Lrnr’s ability to use the personalized learning profile may be more limited.
Lrnr Accounts. Users access the Lrnr Services through an account they establish with the Enterprise Partner. To receive the full benefit of the Lrnr Services by maintaining a longitudinal learning profile across various products and subject domain, a user will need to create an account directly with Lrnr (a “Lrnr Account”) in addition to any account you establish with the Enterprise Partner. If a user is not presented the opportunity to create a Lrnr Account during the registration process, the product offered by the Enterprise Partner does not currently have the capability to allow for this functionality. If a user does not have a Lrnr Account, Lrnr may not be able to apply the user’s personalized learning profile when the user takes an online learning course with the Enterprise Partner (or other Enterprise Partners) that is powered by Lrnr’s adaptive learning technology. To the extent a user creates a separate Lrnr Account:
• There is no charge to create the Lrnr Account.
• Please be assured that Lrnr will not use any personal information that you give Lrnr when you create a Lrnr Account for marketing purposes without your consent.
• A parent, guardian or authorized school representative must consent to the creation of a Lrnr Account for any user who is under 13.
• When you create a Lrnr Account, you will select a user name and password for the account. Each user is responsible for protecting the confidentiality of the user name and password for their Lrnr Account, and for all activities that occur under their Lrnr Account. Each user must immediately notify Lrnr (by email to firstname.lastname@example.org) upon becoming aware of any loss, compromise or unauthorized use of their user name or password or any other breach of security relating to their Lrnr Account.
Changes to Lrnr Services. Lrnr may change, suspend, discontinue and/or impose usage limitations on the Lrnr Services at any time, with or without notice. Lrnr will not have any liability to you or any other user in any such event.
User Conduct. Users may not use the Lrnr Services for any unlawful purpose or in any manner that could
(i) damage, impair, disable or overburden the Lrnr Services,
(ii) in any way interfere with Lrnr’s rights or with any other user’s use and enjoyment of the Lrnr Services or
(iii) otherwise infringe on any person’s rights. To the extent interactions with other users of the Lrnr Services are permitted, each user is solely responsible for their interactions with other users of the Lrnr Services. Lrnr is not responsible for any damage or harm resulting from interactions between or among users of the Lrnr Services. Lrnr reserves the right, but has no obligation, to monitor interactions between or among users of the Lrnr Services and to take any other action in good faith to restrict access to or the availability of any material that Lrnr or another user of the Lrnr Services may consider obscene, violent, harassing or otherwise objectionable.
Lrnr Proprietary Materials. Except for User Content (defined below), Lrnr’s website, Lrnr’s software and technology and any other items made available through the Lrnr Services (collectively, “Lrnr Proprietary Materials”) are the intellectual property of Lrnr or its licensors. The Lrnr Proprietary Materials do not include any course materials or online learning applications provided by Lrnr’s Enterprise Partners; each user’s use of any such course materials and online learning applications is subject to terms agreed to by the user and the applicable Enterprise Partner. Except as may be expressly permitted elsewhere in the Lrnr Terms, neither you nor any other user may copy, distribute, rent, loan, lease, sublicense, modify, translate, otherwise prepare derivative works of, reverse engineer, decompile, disassemble or remove any proprietary notices, labels, or marks from any of the Lrnr Proprietary Materials.
Anonymized Data. You acknowledge that Lrnr may collect data about user interactions with online learning materials and use this data in anonymized form in order to operate the Lrnr Services and improve and inform Lrnr’s internal platform technologies.
Right to Use and Access. Lrnr grants you (or the user for whom you are agreeing to the Lrnr Terms) a revocable, non-exclusive, non-transferable right to access and use those portions of the Lrnr Services that Lrnr makes available to you or such user, solely for personal, noncommercial, noncompetitive use, in accordance with the Lrnr Terms. Neither you nor any other user may transfer the foregoing rights, and any attempt to do so shall cause such rights to automatically terminate.
Special Terms for Educators. The terms in this paragraph are only applicable to users who are instructors or other authorized personnel of a school or other institution (“Educators”) who are accessing the Lrnr Services in connection with the Lrnr Services being provided to students at such institution. You hereby acknowledge that you may have access to additional content and portions of Lrnr’s website that are not otherwise accessible to student users, which may include information about individual student users. You agree that you will access and use such information and the Lrnr Services solely to the extent necessary for you to perform your services as an Educator at your institution and will not disclose such information except as permitted herein, or as permitted in a separate agreement between Lrnr and your institution.
Other Services of Lrnr. Lrnr also offers other online services to users, in addition to the Lrnr Services. Those other services are subject to the terms of service that are posted on Lrnr’s website at Lrnr.us.
Disclaimers. THE LRNR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, LRNR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ANY USE OF THE LRNR SERVICES IS AT THE USER’S SOLE RISK.
WITHOUT LIMITING THE FOREGOING, LRNR DOES NOT WARRANT THAT (i) THE LRNR SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS, (ii) THE LRNR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LRNR SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY CONTENT, SERVICES OR OTHER ITEMS OBTAINED THROUGH THE LRNR SERVICES WILL MEET YOUR OR ANY USER’S EXPECTATIONS, OR (v) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.
IF A USER ACCESSES OR TRANSMITS ANY CONTENT THROUGH THE LRNR SERVICES, THE USER DOES SO AT ITS OWN DISCRETION AND SOLE RISK. EACH USER IS SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO IT IN CONNECTION WITH SUCH ACTIONS.
Limitation of Liability. LRNR WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF LRNR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THE LRNR TERMS AND/OR THE LRNR SERVICES. IN NO EVENT WILL LRNR’S AGGREGATE, CUMULATIVE LIABILITY TO YOU (AND ANY OTHER USER FOR WHOM YOU ARE AGREEING TO THE LRNR TERMS) ARISING FROM OR RELATING TO THE LRNR TERMS AND/OR THE LRNR SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO US FOR THE LRNR SERVICES (IF ANY) DURING THE ONE (1) MONTH PRECEDING THE DATE ON WHICH A CLAIM FIRST ARISES. To the extent that any of the exclusions or limitations of liability set forth in this Section are not permitted under applicable law, then such exclusions and limitations shall apply to the fullest extent permitted under applicable law.
Indemnification. You agree to indemnify, defend and hold harmless Lrnr, its officers, directors, employees, agents, service providers, Enterprise Partners, vendors and customers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees resulting from (i) any violation of the Lrnr Terms by you (or by any other user for whom you are agreeing to the Lrnr Terms) or (ii) any harm caused by you (or by any other user for whom you are agreeing to the Lrnr Terms) in connection with the use of the Lrnr Services (including, for the avoidance of doubt, any competitive harm to use arising from any use of the Lrnr Services by you or by any other user for whom you are agreeing to the Lrnr Terms).
Notice. Lrnr may communicate any notices to you, including notices of changes to the Lrnr Terms, through e-mail, regular mail or by posting of those notices on the Lrnr web site or through the Lrnr Services.
Additional Terms; Entire Agreement. Certain features of the Lrnr Services may be subject to additional guidelines, terms or rules (“Additional Terms”), which will be posted on the Lrnr Services in connection with such features and are hereby incorporated by reference into the Lrnr Terms. The Lrnr Terms (including any applicable Additional Terms) govern your use of the Lrnr Services and constitutes the entire agreement between you and Lrnr, and supersede any prior agreements between you and Lrnr.
Changes to The Lrnr Terms. Lrnr may make changes to the Lrnr Terms at any time by publishing such changes on Lrnr’s website or through the Lrnr Services (or, where applicable, through the services of Lrnr’s Enterprise Partners).
Governing Law and Venue. The Lrnr Terms and the relationship between you and Lrnr shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or relating to use of the Lrnr Services or the Lrnr Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. You further consent and agree that the courts of the State of New York are the exclusive forum for litigation of any claim or cause of action arising out of or relating to use of the Lrnr Services or the Lrnr Terms.
Miscellaneous. Any failure by Lrnr to exercise any rights or enforce any of the Lrnr Terms shall not constitute a waiver of such rights or terms. If any provision of the Lrnr Terms or their application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of the Lrnr Terms, or the application of such provision in other circumstances, shall not be affected thereby, and each provision hereof shall be valid and enforced to the fullest extent permitted by law.
Effective date: July 1st, 2014 | Copyright © 2016 Pochys Ventures Inc. (Lrnr). All rights reserved.