LEARNSMART USE AGREEMENT TERMS AND CONDITIONS
This Use Agreement, including the purchase agreement, Software and Web Site(s) License (collectively, the "Use Agreement"), is a legal document between you ("User", "user", "You", or "you"), an individual, and LearnSmart, LLC ("LearnSmart") that details the rights and obligations of your use of any web sites owned, operated, or authorized by LearnSmart ("Web Site(s)"), if applicable, your use of computer programs furnished to you online, via download, or other media delivery by LearnSmart ("Software"), and, if applicable, your purchase of Software. When you use the Web Site(s), the terms regarding use of the Web Site(s) apply to you and you accept these conditions. If you pay to access the Software, the terms regarding use of the Software apply to you. If you purchase LearnSmart products offline or for offline use, please refer to the End User License Agreement ("EULA") included with the products for terms governing your use of such LearnSmart products. Use of the Web Site(s) and the Software is licensed, not sold, to you by LearnSmart or one of its licensed affiliates for use under the terms of this Use Agreement and LearnSmart and its applicable licensors reserve any rights not expressly granted to you herein.
If you have any questions regarding this Use Agreement, the Web Site(s), or any of your rights and obligations related to your purchase of Software or use of the Web Site(s) or use of the Software, you should contact our Customer Service team by going to www.learnsmartsystems.com/support or by calling 1-800-418-6789. You and LearnSmart agree that the services covered by this Use Agreement are delivered by LearnSmart or its authorized agents or contractors in Tampa, Florida U.S.A.
PURCHASE ACCEPTANCE AND AGREEMENT
CHANGES TO THE USE AGREEMENT
Your LearnSmart purchase may include sales tax as required or permitted by law.
By affirmatively ordering LearnSmart products, you consent to receive all communications, including agreements, notices, legally required disclosures and other information relating to the Web Site(s), LearnSmart products, or Software electronically from LearnSmart. You agree that LearnSmart may send you electronic notice by e-mail and/or by notice on the Web Site(s) or Software. You must have Internet access in order to access electronic communications, Adobe Acrobat Reader and a printer attached to your computer or network to print any notices.
You may withdraw your consent to receive notices electronically by contacting LearnSmart, LLC, 1300 N Westshore Blvd, Suite 125. Tampa, FL 33607. However, if you choose to withdraw consent, LearnSmart may terminate your Online Access or terminate your license to use the LearnSmart products. All registrations, terms, and agreements will be completed electronically according to terms and stipulations of the individual sections of this agreement and for all legal purposes will be considered to be in writing and legally enforceable as a signed writing.
DEFINITION OF DAY
"Day" is defined as 24 hours from the hour and minute of purchase as recorded by LearnSmart in the Eastern Time Zone (ET) of North America.
LearnSmart accepts returns of certain merchandise within 30 days of purchase according to the terms and conditions of the Return Policy found at www.learnsmartsystems.com/returns
CHARGES AND BILLING
LearnSmart may offer the opportunity to purchase the right to use or access the Software for a fixed period of time ("Direct Purchase").
LearnSmart may offer various opportunities to try using our Software for a fixed period of time ("Trial"). A Trial has a Minimum Usage Requirement equal to an average of not less than ten (10) minutes per day of Trial time access granted by LearnSmart. Unless you cancel prior to the end of the Trial or other promotional period for your purchase (typically but not limited to 7, 10, or 30 Days depending on the promotion or program, but not to exceed 30 Days), you will be automatically enrolled in the program for which your Trial is for and we will begin billing your credit card for fees at the current rate in effect for your access to and use of the Software plus any applicable sales taxes. In order to cancel, you must meet the Minimum Usage Requirement before the end of your Trial period. Minimum usage is calculated as the recorded time spent watching a full segment of video within the online video Software system one single time as recorded by LearnSmart. Multiple views of a single segment of video will count as only a single viewing instance for the purposes of calculating minimum usage. For your convenience and in order to provide you with uninterrupted Access, we will charge the access fees (plus any taxes) to the credit card you provide to us during registration (or to a different credit card if you change your account information) according to the terms specified by the program. You should understand that the applicable Trial period runs continuously from the earliest of your initial registration or purchase or initial Trial payment regardless of your use of the Software, and to avoid being charged for fees associated with Software, you must cancel your account before the end of the Trial period. If you decide to cancel you must notify LearnSmart within the program's specified Trial or other promotional period through our online ticket system at www.learnsmartsystems.com/support to indicate that you want to cancel the program. Alternatively, you may submit your cancellation notice via certified USPS postal mail or FedEx with signature required for delivery postmarked within 30 Days from the date of purchase to LearnSmart, LLC, ATTN: Trial Cancellation Notice, 1300 N. Westshore Blvd, Suite 125, Tampa, FL, 33607. Terms for postal mail cancellation are identical to terms for online cancellation. Your account will remain active until cancellation is confirmed by LearnSmart and you will retain access to Software while your account is active and in good standing. Upon confirmation by LearnSmart of your request to cancel, the License will terminate immediately and no portion of any Access fees will be refunded. A limit of one (1) cancellation per household or organization per 24 months.
CONTINUING ACCESS PROGRAM
LearnSmart may offer various opportunities to enroll in a service that allows continuous viewing of certain Software provided access fees have been paid in advance ("Continuing Access Program"). Unless you have made a Direct Purchase or you cancel prior to the end of any Trial or other promotional period, you will be automatically enrolled in the Continuing Access Program and we will begin billing your credit card for fees at the current rate in effect for your access to and use of the Software plus any applicable sales taxes. For your convenience and in order to provide you with uninterrupted Access, we will charge the access fees (plus any taxes) to the credit card you provide to us during registration (or to a different credit card if you change your account information). Thereafter, your Access, whether it is Trial or another promotional period, and provided it is not a Direct Purchase, will automatically renew for similar successive time periods, without prior notice to you, unless and until you cancel your Continuing Access Program or we terminate it. You must cancel your Continuing Access Program before it renews in order to avoid billing of additional access fees to your credit card. We will continue to bill your credit card on a monthly basis (or other periodic billing, depending upon the terms and time period of your Continuing Access Program) for your access to and use of the Software until you cancel your Continuing Access Plan. If you are not satisfied with the fees or billing methods, you may cancel your Continuing Access Program at any time, but LearnSmart will not refund any remaining portion of the monthly (or other periodic) fee when you cancel and you will be obligated to pay any remaining fee(s) due to LearnSmart to honor your Continuing Access Program agreement at the time of cancellation. If you agreed to a free or paid Trial period for Access, you should understand that the applicable time period runs continuously from your initial registration regardless of your use of the Software, and to avoid being charged for fees associated with the Continuing Access Program, you must cancel your account before the end of the Trial period. LearnSmart reserves the right to change our fees or billing methods at any time, but we will give you thirty (30) Days advance notice of these changes if your Continuing Access Program fee(s) will be affected. In certain circumstances, termination charges may apply if you cancel prior to the end of a designated term, if, for example, you have obtained a bonus product. LearnSmart also reserves the right to terminate your Access at any time and for any reason, including any violation of Export Control Laws as more fully set forth in the "Export Control Laws" section below. In the event LearnSmart terminates your access, and if applicable, your Continuing Access Program, the License will terminate immediately without notice from LearnSmart and no portion of any Access fees will be refunded.
Missed or otherwise unmade payments will result in your account being considered delinquent by LearnSmart. Service for delinquent accounts is immediately suspended until such account is made whole by you. Delinquent accounts require payment in full for remaining balance and are subject to a $50.00 processing fee, or the maximum allowable by law whichever is less, for each unreceived payment. User is responsible for all legal fees, collection fees and other related expenses incurred by LearnSmart to secure payment for your account.
LIFETIME TRAINING PASS
LearnSmart may offer an opportunity to enroll in a service that provides lifetime access to a particular selection of our training. Lifetime shall be defined by the natural life of the customer. Lifetime access is non-transferable. LearnSmart reserves the right to add, remove, or change the courses, training, products, services, or mode of delivery offered within the Lifetime Training Pass at any time and without notice. Access to Lifetime Training Pass requires payment of a monthly Hosting Maintenace Fee. Unless otherwise stated in writing, the monthly fee amount shall be $25 USD. LearnSmart reserves the right to change the amount of this fee at any time, without notice, and without restriction to new amount. Failure to pay this fee will result in immediate suspension of access to Lifetime Training Pass. Accounts with Hosting Maintenance Fees that remain unpaid for up to six (6) months are subject to a reactivation fee of $99. Accounts with Hosting Maintenance Fees that remain unpaid for more than six (6) months and less than or equal to ten (10) years are subject to a reactivation fee of $249. Accounts with Hosting Maintenance Fees that remain unpaid for more than ten (10) years are subject to a reactivation fee of $999.
SOFTWARE DELIVERY FORMAT
LearnSmart may offer User choice in delivery of Software in a variety of media formats including but not limited to CD-ROM, DVD-ROM, Online Access, download, hard disk, or flash drive. LearnSmart reserves the right to substitute or replace any delivery format for any other delivery format of LearnSmart choice without notice.
LINKS TO THIRD PARTY SITES
Many of the Web Site(s) and products contain links that will let you leave the Web Site(s) or product. The linked sites are not under the control of LearnSmart, and you acknowledge that LearnSmart is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. LearnSmart is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by LearnSmart of the site.
GRANT OF LICENSE
LearnSmart hereby grants to you for the term dictated by your purchase a nonexclusive, nontransferable, nonassignable, limited right and license to use this Software as is and for its expressed intended purpose not to be used concurrently on more than one computer for your individual, personal, non-commercial use.
You may not share this Software with or allow others to view the contents of this Software. You may not alter, merge, modify, improve, translate, reverse engineer, decompile, decrypt, decode, disassemble, adapt, record, capture or create a derivative work of this Software. You may not sell, rent, lease, sublicense, or otherwise transfer or distribute this Software to any other party. You may not use this Software for any commercial timesharing, rental, or service bureau enterprise.
SHARING THIS SOFTWARE WITH OR ALLOWING OTHERS TO VIEW THE CONTENTS OF THIS SOFTWARE OR USE YOUR ACCOUNT TO ACCESS THE SOFTWARE IS A VIOLATION OF THIS LICENSE.
COPYRIGHTS AND TRADEMARKS
All content included in the Software and on the Web Site(s) is the property of LearnSmart or its third-party licensors and protected by U.S. and international copyright laws.
LearnSmart, LearnSmart Video Training, Printables, Lecture Series, Quiz Me Series, Awdeeo, and other LearnSmart logos are trademarks or registered trademarks of LearnSmart, LLC. All other trademarks not owned by LearnSmart that appear in the Software or on Web Site(s) are the property of their respective owners.
Making unauthorized copies of any content may lead to the termination of your access to the Web Site(s) and Software and may subject you to further legal action. Similarly, third-party licensors may take criminal or civil action against you. In that event, you agree to hold harmless LearnSmart and its subsidiaries, affiliates, related companies, employees, officers, directors and agents.
You may not use the Software for benchmarking or performance testing. You may not reverse engineer, decompile, disassemble or otherwise reduce the Software to any human perceivable form. You may not modify, adapt, translate, rent, lease, loan or create derivative works based upon the Software or Web Site(s) or any parts thereof. You may not reproduce, transmit, edit, alter, modify, create derivative works of, rent, lease, loan, resell or distribute the Software or Web Site(s), in whole or in part. You may not copy, download or otherwise transfer the Software or content from the Web Site(s) to your computer or any other computer or storage device. You may not remove any proprietary markings of LearnSmart or its licensors. LearnSmart is not responsible for lost, stolen, undelivered, unreceived, or otherwise misplaced communication by User to LearnSmart or by LearnSmart to User whether it be electronic or physical regardless of reason or intention.
You acknowledge that the Web Site(s) and the Software may contain bugs, omissions, typographical errors or other errors. LearnSmart reserves the right to make improvements and changes to the Web Site(s) and the Software at any time without notice or liability to you; provided however that LearnSmart is under no obligation to make such improvements or changes. You acknowledge and agree that LearnSmart has no obligation to support or update the Web Site(s) or the Software and has no obligation to provide you with any support, maintenance, corrections, "bug fixes," updates, new versions or revisions thereto. You understand that LearnSmart's introduction of various technologies may not be consistent across all platforms and that the performance of the Web Site(s) may vary depending on your Internet connection, your computer and other equipment.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
USER AGREES THAT THE WEB SITE(S) AND THE SOFTWARE ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. LEARNSMART MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE WEB SITE(S) OR THE SOFTWARE, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES AND REPRESENTATIONS THEREFOR, INCLUDING WITHOUT LIMITATION, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES AND REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. LEARNSMART DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE VIRUS OR ERROR FREE OR THAT DEFECTS, IF ANY, IN THE SOFTWARE WILL BE CORRECTED. YOU AGREE AND ACKNOWLEDGE THAT YOU ARE USING THE WEB SITE(S) AND INSTALLING THE SOFTWARE AT YOUR OWN RISK. LEARNSMART DOES NOT WARRANT OR REPRESENT THE ACCURACY OR RELIABLITY OF THE USE OR RESULTS OF THE USE OF THE WEB SITE(S) OR SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LEARNSMART OR A LEARNSMART REPRESENTATIVE SHALL CREATE A WARRANTY OR INCREASE THE SCOPE OF THIS WARRANTY OR THE LICENSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. LEARNSMART MAY GIVE YOU THE OPPORTUNITY TO INSTALL SOFTWARE OR PROGRAMS PROVIDED BY OTHER COMPANIES ("THIRD-PARTY PROGRAMS") ON YOUR COMPUTER. YOU ACKNOWLEDGE THAT SUCH THIRD-PARTY PROGRAMS MAY NOT BE ERROR FREE OR ACCURATE, AND THEREFORE YOU ACKNOWLEDGE AND AGREE THAT BY INSTALLING SUCH THIRD-PARTY PROGRAMS ON YOUR COMPUTER, YOU DO SO AT YOUR OWN RISK. YOU AGREE TO COMPLY WITH ALL LICENSE TERMS FOR THIRD-PARTY PROGRAMS THAT ARE DISCLOSED TO YOU BY LearnSmart. YOU ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION APPLY TO THE THIRD-PARTY PROGRAMS. THE LICENSE TERMS FOR SOME SUCH THIRD-PARTY PROGRAMS ARE AVAILABLE FROM THE ORIGINATING OR LINKED THIRD-PARTY SITE.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT, LEARNSMART SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR ANY OTHER DAMAGES WHATSOEVER, WHETHER ARISING IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF DATA, COMPUTER REPAIR COSTS, LOST PROFITS OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF THE USE, OR THE INABILITY TO USE THE SOFTWARE OR THIRD-PARTY PROGRAMS, EVEN IF LEARNSMART HAS BEEN ADVISED OF, OR SHOULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES. USER'S SOLE REMEDY SHALL BE TO DISCONTINUE ACCESS TO AND USE OF WEBSITE(S), THE SOFTWARE, AND IF APPLICABLE, TERMINATE USER'S CONTINUING ACCESS PLAN. LEARNSMART'S AGGREGATE LIABILITY FOR ANY BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE SOFTWARE LICENSED UNDER THIS AGREEMENT.
EXPORT CONTROL LAWS
All LearnSmart products and services, including Software and documentation, available on the Web Site(s) are subject to the export control laws and regulations of the United States. LearnSmart's Software is prohibited for export or re-export to any person or entity on the U.S. Department of Commerce Denied Persons, Entities and Unverified Lists, the U.S. Department of State's Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists, as the same may be revised from time to time, or for use with chemical or biological weapons, sensitive nuclear end-users, or missiles. By downloading or using the Software from the Web Site(s), you are agreeing to the foregoing and all applicable export control laws. You are also warranting that you are not under the control of, located in, or a resident or national of any such country or on any such list.
Use Agreement shall be governed in its construction, interpretation, and performance by the laws of the State of Florida, without reference to law pertaining to choice of laws or conflict of laws. In the event of any claim or dispute arising out of or relating to this agreement or the breach, termination, validity, or enforcement of this agreement, venue shall be exclusively in Hillsborough County, Florida.
You agree to defend, indemnify and hold harmless LearnSmart and its employees, contractors, officers, and directors from all liabilities, claims and expenses, including attorneys' fees that arise from a breach of this Agreement for which you are responsible. LearnSmart reserves the right to assume the exclusive defense and control of any matter otherwise subject to your indemnification obligation.version 05092012Updated May 2012