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BRIGHTSPACE APP FINDER GENERAL TERMS AND CONDITIONS OF USE

Last Update: May 06, 2015

PLEASE READ THESE GENERAL TERMS AND CONDITIONS OF USE AS SET OUT BELOW (the “Terms and Conditions”) CAREFULLY BEFORE USING BRIGHTSPACE APP FINDER WEB SITE (INCLUDING THE DISCUSSION FORUM) (the “Site”).  THESE TERMS AND CONDITIONS GOVERN YOUR ACCESS TO AND USE OF THIS SITE, INCLUDING THE MESSAGES, INFORMATION, DATA, TEXT, SOFTWARE, IMAGES AND OTHER CONTENT THAT MAKE UP THIS SITE (the “Content”, which Content is part of this Site).  THESE TERMS AND CONDITIONS EXEMPT D2L CORPORATION AND, ITS SUBSIDIARIES AND AFFILIATES (collectively “D2L”, “we”, or “us”) AND OTHERS FROM LIABILITY AND/OR LIMIT OUR AND THEIR LIABILITY AND CONTAIN OTHER IMPORTANT PROVISIONS THAT APPLY TO YOUR USE OF THIS SITE.

Nothing in this Terms and Conditions shall be construed as an impairment of D2L’s ability to comply with applicable laws.

  1. Terms and Conditions of Use of Site

Your use of this Site is conditional on your acceptance of these Terms and Conditions, D2L’s Privacy Statement (http://www.D2L.com/contact/privacy/) which is incorporated by reference into these Terms and Conditions and any other additional terms that D2L may post on the Site, which are incorporated by reference into these Terms and Conditions.  By visiting or using this Site, you agree on your own behalf, and on behalf of any organization on whose behalf you have authority to act (collectively referred to herein as “you”), to accept and abide by these Terms and Conditions for each use of and each visit to this Site.

If you are under the age of majority in your jurisdiction, you must review these Terms and Conditions with your parent or legal guardian to make sure that you and your parent or legal guardian understand these Terms and Conditions and agree to be bound by them.  By using this Site, you affirm that you (i) are at least the age of majority in your jurisdiction; or (ii) have your parent’s or legal guardian’s consent to agree to these Terms and Conditions.

If you do not agree to abide by these Terms and Conditions, do not use this Site.  You agree to have these Terms and Conditions and any related information made available to you, and to otherwise have communications between you and us occur, electronically.

D2L has the right, in its sole discretion, to add to, remove, modify, to impose new or additional rules, policies, terms or conditions on your use of the Site (“Additional Terms”)  or otherwise change any part of these Terms and Conditions  (including the D2L Privacy Statement), in whole or in part, at any time. All such Additional Terms are incorporated into these Terms and Conditions by this reference. Changes will be effective as of the date the terms were changed or added or indicated at this Site.  It is your responsibility to check these Terms and Conditions (including Additional Terms) each time you access this Site to determine whether any changes have been made, including by checking the date of the “Last Update” at the top of these Terms and Conditions. If any change to these Terms and Conditions is not acceptable to you, you must discontinue your use of this Site, or any portion thereof immediately. Your continued use of this Site, or any portion thereof after any such changes are posted will constitute acceptance of those changes.  These Terms and Conditions apply exclusively to your use of this Site and do not alter the terms or conditions of any other agreement you may have with D2L.

D2L may, at any time without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of this Site, including: (i) changing the availability of, restricting access to, or imposing limits on any or all features or services on, or links to, this Site; (ii) removing, adding, modifying or otherwise changing any fees or charges arising out of use of this Site or any features of this Site; and (iii) removing, adding, modifying or otherwise changing any Content on this Site.  D2L reserves the right, in its sole discretion, to correct any errors or omissions in any portion of this Site at any time without notice, but confirms that it has no duty to do so.

Please note that D2L does not provide additional warranties for the Site. These Terms and Conditions also limits D2L’s liability to you. See Disclaimer of Warranties and Limitation of Liability Sections for details.

  1. Intellectual Property Ownership.

Except as expressly set forth in these Terms and Conditions, D2L, D2L partners, D2L licensors, and third parties, as applicable, retain all right, title, and interest in the Site. You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute the Site or components of the Site in any form or by any means without prior express written agreement from D2L or the rightful owner of such components, as applicable. All trademarks or service marks are property of their respective owners.  These Terms and Conditions grants you no right, title, or interest in any trademarks owned or licensed by D2L, including D2L or third-party trademarks.

  1. Credentials, Account, Associated Accounts

D2L may provide you with credentials (e.g, ID and password) (the “Credentials”) to use with this Site. These Terms and Conditions apply whenever you use the Credentials. When you use the Credentials to gain access to any application or web site other than this Site, the terms and conditions (including but not limited to any end user license agreements) for that application or web site will apply in addition to these Terms and Conditions to your use of that application or web site.

Your Credentials will correspond to an account (“Account”) granted to you by D2L. Only you may use your Account. You must keep your Account and Credentials confidential and not authorize any third party to access or use the Site on your behalf, unless D2L provides an approved mechanism for that. You must contact D2L immediately if you suspect misuse of your Account or any security breach in this Site. For some parts of this Site, you may be able to set up additional accounts that are dependent on your Account (“Associated Accounts”). You are responsible for all activity that takes place with your Account and any Associated Accounts.

If you use an Associated Account, you acknowledge that the holder of the Account has full control over your Associated Account. If a third party such as an internet service provider, employer, or academic institution gave you your Associated Account, that party has rights to your Associated Account and may: manage your Associated Account, reset your password, or suspend or cancel your Associated Account; view your Associated Account’s usage and profile data, including how and when your Associated Account is used; and read or store content in your Associated Account, including electronic communications, contact lists, and other information which may include your confidential information. It is important for you to be aware of the privacy policies for any third party provider for which you were granted an Associated Account. D2L is not responsible for the privacy policies of any third party providers.

D2L may cancel or suspend your Account and your access to the SIte at any time without notice and for any reason. Reasons for cancellation may include that D2L stops providing this Site in your region or that you breach these Terms and Conditions or don’t pay fees that you owe to us or to our agents. If your Account or Associated Account is canceled, your right to use this Site stops immediately. If D2L cancels your Credentials, your right to use this Site stops immediately. Cancellation of this Site or Credentials won’t alter your obligation to pay all charges made to your billing account, if applicable. If D2L cancels this Site in its entirety without cause, it will refund to you on a pro-rata basis any payments that you have made based on the portion of this Site that would otherwise remain. D2L will not provide any refund for Associated Accounts (including accounts of third parties), the use of or access to which is affected by D2L’s cancellation of this Site without cause.

  1. Grant of Limited License
    • From D2L to You:

Subject to the terms of these Terms and Conditions, D2L grants you a limited, non-exclusive, personal, non-commercial, non-assignable, non-transferable, non-sub-licensable, revocable, license to display and review this Site on your computer or mobile device, and to print, download and use the Content on this Site, solely for informational and solely for your own personal use or internal use by your organization. You may not modify any aspect of this Site. You must include with any display or copy of the Content the copyright notice shown at the bottom of this page. No other use is permitted.

All rights not expressly granted by these Terms and Conditions are reserved by D2L.

Notwithstanding any other provision of these Terms and Conditions, you may access and use the Site for lawful purposes only. You agree to not use the Site to violate any applicable law, these Terms and Conditions or D2L Privacy Statement.

You may not, or assist or cause others:

  • to transfer, sell, rent, lease, distribute, transmit, broadcast, copy or reproduce, forward, modify, print, create derivative works based upon, disseminate, export, publish or sublicense the Site or in any way commingle the Site with other third party services, products or content for any reason whatsoever, including for the purpose of creating competitive products or services, without D2L’s prior written consent;
  • to defeat, modify, bypass, or circumvent security or any other features that protect the Site;
  • in, interfering with, hacking, or otherwise compromising any security measures of the SIte or using the Site to interfere, hack, or otherwise compromise any security measures of other products or systems, including D2L products, services or systems;
  • to use this Site in any manner that could damage, disable, overburden, impair, interfere with the security of, negatively affect the functioning of, or otherwise abuse, this Site or any services, system resources, accounts, servers, networks, affiliated or linked sites connected to or accessible through this Site (including without limitation uploading, posting or otherwise transmitting on this Site any computer viruses, Trojan horses, worms or other files or computer programs which are potentially harmful, disruptive or destructive or that may impose an unreasonable or disproportionately large load on this Site’s or D2L’s infrastructure or services;
  • to use any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from this Site or the Content in whole or in part);
  • use this Site for commercial purposes or activities (except to submit your requested listing that will be considered for listing on the catalogue of the Site), including without limitation:
    • selling or offering to sell any goods or services;
    • soliciting for advertisers or sponsors;
    • conducting contests, gaming or gambling or offering prizes, awards or any other incentives to any person;
    • displaying advertising or sponsorship banners, including those generated by banner or link exchange services;
    • soliciting for donations; or
    • sending unauthorized or unsolicited junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;
  • to download, store, transmit or communicate any content or data that:
    • you do not have legal authority to download, store, transmit or communicate;
    • contain viruses, time bombs or other malicious computer code;
    • infringe another’s intellectual property rights (including copyrights);
    • are unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; or
    • adversely affects D2L’s products or services;
  • to improperly access another’s data or to misrepresent your affiliation or identity;
  • use this Site in any manner that may dilute or depreciate the name or reputation of D2L, its Marks (as defined below) or its associates; or
  • interfere with any other persons’ use and enjoyment of this Site or related products or services or of the Internet generally.

In addition, you agree that you are solely responsible for actions and communications undertaken or transmitted in the course of your use of this Site, and that you will comply with all laws that apply or may apply to your use of or activities on this Site. D2L will investigate occurrences which may involve violations of such laws, and may involve, and co-operate with, law enforcement authorities in prosecuting users who are involved in such violations. D2L shall have the right at all times to disclose any information regarding your use of this Site or related products or services as necessary to satisfy any law, regulation or governmental request.

  • From You to D2L:

You grant D2L and its partners a non-exclusive, non-transferable, non-sub-licensable, revocable, limited license to use your branding, trademarks, service marks, logos, trade names or other words or symbols in accordance with your reasonable branding use guidelines or similar documentation that is provided by you to D2L with Submitted Listing, for the purpose set out in these Terms and Conditions and for such other activities as D2L may require for the marketing and promotion of its products and services including the catalogue and the Site.

In addition, you grant D2L and its partners a non-exclusive, non-transferable, non-sub-licensable, revocable, limited license to use your copy written material submitted with or as part of the Submitted Listings for the purpose set out in these Terms and Conditions and for such other activities as D2L may require for the marketing and promotion of its products and services including the catalogue and the Site.

  1. Your Obligations

You are solely responsible for the content related to your submissions or interactions on the Site and will ensure that they are up to date, accurate, appropriate and legal.

You are solely responsible for having the appropriate terms and conditions for use or access of your products and services by the clients.  You are solely responsible to provide the requisite support to the clients for use or access of your products and services.

You will indemnify, or where prohibited by law, may be liable to D2L and/or their clients or prospects or partners, to the maximum extent permitted by law for any and all claims, losses and damages D2L and/or D2L’s client or partner or any third party suffers as a result of the information by you in regards to your submission and/or your products and services related to these submissions.

  1. Proprietary Rights

This Site is protected by Canadian, U.S. and worldwide intellectual property laws and copyright laws and treaty provisions. Any unauthorized copying, redistribution, reproduction or modification of this Site (including any element of the Content) by any person may be a violation of intellectual property, trade-mark and/or copyright laws and could subject such person to legal action.  You agree to comply with all intellectual property and copyright laws worldwide in your use of this Site and to prevent any unauthorized copying, redistribution, reproduction or modification of this Site or any of the Content.

Certain names, graphics, logos, icons, designs, words, titles and phrases on this Site, including without limitation “D2L” and other applicable trade-marks listed at http://www.D2L.com/trademarks/, constitute trade-marks, trade names, trade dress and associated products and services of D2L or its affiliates (the “Marks”) or constitute trade-marks, trade names, trade dress and associated products and services of D2L suppliers or other third parties (the “Third Party Marks”) and are protected in Canada and internationally and their display on this Site does not convey or create any license or other rights in the Marks or the Third Party Marks. Any use of the Marks or the Third Party Marks, in whole or in part, without prior written authorization of D2L or such third party, as applicable, is strictly prohibited.

  1. Brightspace App Finder Catalogue

You understand, acknowledge and agree that:

  • the Brightspace App Finder catalogue on the Site lists products and services (the “Products and Services”) that may require you to agree to the terms of separate licence agreements and such terms of that licence agreement will govern your access to and use of the Products and Services;
  • the suppliers of these Products and Services shall be solely responsible for the Products and Services, including their quality, accuracy, and appropriateness, and for providing the requisite support to you for use or access of these Products and Services;
  • your use of the Site and any Products and Services is at your sole risk, and you will solely be responsible to implement appropriate policies and procedures, including restrictions on data, to govern the personal information that may be processed in the course of use of the Products and Services as well as the acceptable use of the Products and Services by your end users;
  • you will indemnify, or where prohibited by law, may be liable to D2L and/or the relevant D2L supplier, to the maximum extent permitted by law for any and all claims, losses and damages D2L and/or the relevant D2L supplier suffers as a result of the unlawful, unlicensed or misuse of any Products and Services or Content or User Content on this Site (including Marks and Third Party Marks) by you or your end users; and
  • D2L does not, and disclaims any obligation to, police, monitor or control your use of the Products and Services or the data you transmit using the Products and Services. D2L disclaims all liability and is not responsible for the Products and Services including but not limited to the accuracy, usefulness or availability of the Products and Services, any data transmitted or made available via the Products and Services, any errors, inaccuracies or omissions in the Products and Services.  You acknowledge that your data related to these Products and Services may be hosted by third party providers selected by the suppliers of the Products and Services.
  1. Linked Sites

Certain links on this Site may take you to other web sites that are not owned or operated by D2L. D2L provides these links only as a convenience.  D2L is not responsible for the content (including but not limited to content that may be offensive, indecent, objectionable, or that contains errors or inaccuracies) of any such linked web sites. D2L makes no representation or warranty regarding, and does not endorse, such linked web sites, the information or other content appearing thereon or any of the products or services available on or through such web sites.

Notwithstanding any other provision of these Terms and Conditions, you agree that your use of the Site is at your sole risk and that D2L shall have no liability to you for such linked web sites, information or content appearing thereon or any of the products or services available on or through such web sites or content that may be found to be offensive, indecent, objectionable, erroneous or inaccurate.

If you decide to visit any linked site or use or access the content, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements.

D2L welcomes links to this Site.  However, you agree that if you link to this Site your website shall not:

  • create frames around any part of this Site or use other techniques that alter the visual presentation of this Site;
  • imply that D2L is endorsing you or any other person, or your or such other person’s products or services;
  • imply an affiliation between you or any other person, or your or such other person’s products or services, and D2L without the prior written consent of D2L;
  • misrepresent the relationship of you or any other person with D2L or present false, misleading or otherwise damaging information or impressions about D2L or any of its products or services; or
  • contain materials that may be illegal or interpreted as distasteful, harmful, offensive, or inaccurate.

You acknowledge and agree that in no event will D2L provide any form of remuneration for any links you may make to this Site or any D2L products.

  1. Privacy Statement

You should carefully read D2L’s Privacy Statement before deciding to use the Sites as it is incorporated into these Terms and Conditions by reference, and governs D2L’s treatment of information you provide to D2L. Please note that certain data, content or information which you may submit using the Site are likely to, reveal your gender, ethnic origin, nationality, age, or other personal information about you. You acknowledge that your submission of any data, content or information to D2L is voluntary on your part.

  1. Information Collection and Disclosure

In order to continually innovate and improve its products and services, and/or to perform statistical analyses of the collective characteristics and behavior of all users, and/or by measuring demographics and interests regarding specific products and services and/or to provide support and services to you, D2L may collect certain information about you and your interaction with the Site. As part of the Site, D2L may also automatically upload information about your computer or mobile device, your use of the Site, and Site performance. This information that D2L collects may identify you as an individual.

  1. User Communications

Any information gathered by D2L through your use of this Site may be used by D2L for its own marketing, promotional and product development purposes and more specifically may be stored in a database and used by D2L to identify, customize and personalize user access, and assess utilization of this Site.  Such information may be shared among D2L and its affiliates, suppliers, licensors, partners and clients in furtherance of the forgoing purposes. From time to time, (i) D2L may email you; (ii) D2L’s partners may contact you that may be related to the products and services they provide if you have signed up for such products and services; and (iii) D2L may display advertisements and opportunities from third parties.

  1. Feedback

As part of using the Site, D2L may provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Site. You agree that in the absence of a separate written agreement to the contrary, D2L will be free to use any feedback you provide for any purpose.

  1. User Submissions (solicited and unsolicited)
    • Subject to any applicable law and the requirements of the D2L Privacy Statement:
      • D2L does not wish to obtain unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved products, goods, services or technologies, product enhancements, processes, materials, marketing plans, or new product names. Accordingly, please do not send any unsolicited ideas, suggestions or other materials (“Submissions“) to D2L.
      • any communications sent by you to D2L via this Site or otherwise, including Submissions, whether solicited by D2L or otherwise, are on a non-confidential basis (other than personal information which is covered under the D2L Privacy Statement), and D2L shall be free to use and disclose the content of any such communication, including without limitation any ideas, inventions, concepts, techniques or know-how disclosed therein, for any purpose including without limitation developing, manufacturing and/or marketing goods and services. You agree to not assert any ownership right of any kind in such communications (including without limitation copyright, trade-mark, patent, trade secret, unfair competition, moral rights, or implied contract) and you hereby waive such moral rights in favour of D2L and its affiliates, licensees, successors and assignees.  You also acknowledge that you have no right to receive any financial or other consideration in connection with such communication.
    • D2L is not obliged to monitor, screen, police or edit your use of this Site, including postings you or others may make to this Site, although D2L may choose to do so in its sole discretion. D2L will respond as it considers appropriate, in its sole discretion, if D2L becomes aware of any inappropriate uses of this Site, including without limitation use that constitute copyright infringement.
    • Users of this Site may be permitted to submit or post discussions, questions, images, comments, reviews or other information (“User Content”) to this Site. In submitting or posting any User Content, you agree:
      • not to post any User Content that may: (A) harm, threaten, harass, abuse or intimidate any other person in any way; (B) involve materials that constitute, depict, promote, encourage, indicate, advocate or tend to incite the commission of a crime or other unlawful activities, violence, hatred, cruelty or discrimination against any individuals or groups, for any reason, or any act of cruelty to animals; (C) conceal or misrepresent the author or origin of any messages or communication, or that impersonate any person, or that falsely state or otherwise misrepresent an affiliation with any other person, including D2L; or (D) disclose any private or personal information about any person without that person’s permission.
      • you are solely responsible for your User Content and any other actions and communications undertaken or transmitted in the course of your usage of this Site, and that you will comply with all laws that apply or may apply to your use of or activities on this Site. D2L may investigate occurrences which may involve violations of such laws and co-operate with law enforcement authorities in prosecuting users who are involved in such violations. D2L reserves the right at all times to disclose any information (including without limitation your personal information or your identity) regarding your usage of this Site (including any perceived violations of applicable law), in each case as may be permitted or required by applicable law, including as necessary to satisfy any request authorized by applicable law.
      • User Content you share in public areas of this Site or in shared areas available to others may use that User Content and you grant them free, non-exclusive permission to use, reproduce, distribute, display, transmit, and communicate to the public the User Content solely in connection with this Site and other products and services made available by D2L, its agent and its partners. If you do not want others to have those rights, do not use this Site to share your User Content.
      • and understand that D2L may need, and you hereby grant D2L, its agents and its partners the right, to use, process, transfer, modify, adapt, reproduce, distribute, delete and display User Content posted on this Site.
      • that you shall not share any User Content on this Site in a way that infringes others’ copyrights, other intellectual property rights, or privacy rights. You represent and warrant that you have all the rights necessary for you to grant the rights in this section and the use of the User Content doesn’t violate any law. D2L will not pay you for your User Content. D2L may refuse to publish your User Content for any or no reason. D2L may remove your User Content from this Site at any time at its discretion. D2L does not have an obligation to police the copyright validity of any of the User Content on this Site.
      • that you are responsible for backing up your User Content or data that you store using the Site. If there is a Site outage, your User Content or data may be lost. If your use of Site is suspended or canceled, D2L may permanently delete your User Content or data. D2L has no obligation to return your User Content or data to you after the use of the Site is suspended or canceled. If your User Content or data is stored with an expiration date, D2L may also delete your User Content or data as of that date. User Content or data that is deleted may be irretrievable.
      • and you acknowledge that D2L, its agents and its partners may use, process and/or transfer (including intra-group and to entities in countries that do not provide statutory protections for personal information) your User Content or data (which may include certain information about you) in whole or in part: (a) in connection with provisioning this Site; (b) to incorporate your data into databases controlled by D2L for the purpose of providing products or services; administration, provisioning, billing and reconciliation; verification of your identity, solvency and creditworthiness; maintenance, support and product or service development; fraud detection and prevention; sales, revenue, and customer analysis and reporting; market and customer use analysis; and (c) to communicate to you by voice, letter, fax, e-mail or other means regarding this Site.
  1. Additional Charges.

You further acknowledge and agree that use of the Site may result in data, bandwidth or additional third party charges (e.g., from your mobile carrier and/or internet provider) and that these charges are your responsibility.

  1. Disclaimer of Warranties

D2L makes reasonable efforts to ensure that the Content is accurate at the time it is posted on this Site; however, D2L makes no representation or warranty and there are no conditions of any kind regarding this Site or the Content or User Content, including without limitation any representation, warranty or condition regarding the accuracy, reliability, currency, or completeness of the Content or User Content.

D2L makes no representation or warranty and there are no conditions that Content or User Content on this Site is appropriate or available for use at any locations outside Canada.  Accessing the Content or User Content from locations where the Content or User Content is illegal is prohibited. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with local laws.

You acknowledge and agree that this Site (including without limitation the Content or the User Content) is provided on an “AS IS” basis and that any use of or reliance on this Site shall be at your sole risk.

D2L AND ITS AFFILIATES DO NOT MAKE ANY, AND EXPRESSLY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED, WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THIS SITE (INCLUDING THE CONTENT OR USER CONTENT). FOR GREATER CERTAINTY, D2L DOES NOT GUARANTEE OR WARRANT THAT THIS SITE WILL (i) MEET YOUR REQUIREMENTS, (ii) BE COMPATIBLE WITH YOUR COMPUTER, MOBILE DEVICE OR RELATED EQUIPMENT, (iii) BE ACCURATE, RELIABLE, AUTHENTIC, CURRENT OR COMPLETE, (iv) CONTINUE TO OPERATE, (v) OPERATE WITHOUT INTERRUPTIONS, OR (vi) BE ERROR-FREE, Through your use of the SITE. IN ADDITION D2L DOES NOT GUARANTEE OR WARRANT THAT ANY INFORMATION OR DATA YOU MAY STORE OR ACCESS THROUGH THE SITE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION OR LOSS.

you may have opportunities to engage in commercial transactions with OR USE PRODUCTS OR SERVICES OF other PARTIES. You acknowledge that all transactions relating to any merchandise or PRODUCTS OR services offered by any party, including the purchase AND payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions OR PRODUCTS OR SERVICES, are agreed to solely between the OTHER PARTY and you.  D2L MAKES NO WARRANTY REGARDING ANY INTERACTIONS OR TRANSACTIONS EXECUTED OR ACCESSED THROUGH, OR IN CONNECTION WITH SUCH PRODUCT, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS OR INTERANCTIONS OR ACCESS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK.  ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, CONTENT, OR INFORMATION AVAILABLE ON OR THROUGH SUCH PRODUCT FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY D2L.

  1. Limitation of Liability

YOU AGREE THAT IN NO EVENT WILL D2L OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES (COLLECTIVELY “D2L REPRESENTATIVES”) HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH THIS SITE FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE BASIS, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOSS OF INFORMATION OR PROGRAMS OR DATA, LOSS OF PROFIT, LOSS OF SAVINGS, LOSS OF REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC LOSS), ARISING FROM OR IN CONNECTION WITH OR RELATING TO THE USE OF OR ACCESS TO, OR ANY INCONVENIENCE, DELAY OR LOSS OF USE OF OR ACCESS TO, THIS SITE, THE CONTENT, THE USER CONTENT OR ANY CONTENT OF ANY LINKED WEB SITE, OR FAILURE OF SUCH WEB SITES (INCLUDING WITHOUT LIMITATION ANY DAMAGES SUFFERED AS A RESULT OF OMISSIONS OR INACCURACIES IN SUCH WEB SITES OR CONTENT, OR THE TRANSMISSION OF CONFIDENTIAL OR SENSITIVE INFORMATION TO OR FROM SUCH WEB SITES), EVEN IF D2L OR ANY D2L REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF SUCH DAMAGE OR LOSS WAS FORESEEABLE.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, D2L DISCLAIMS ALL LIABILITIES TO YOU, THROUGH ANY ACT OR OMISSION AS IT RELATES TO THE UNLAWFUL OR UNAUTHORIZED USE OF THE SITE. YOU ARE SOLELY RESPONSIBLE FOR ALL DATA MADE AVAILABLE TO OR BY THE SITE OR D2L. BY ENTERING INTO THESE TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT D2L ACTS AS TRUSTEE FOR ITS SUBSIDIARIES AND AFFILIATES WITH RESPECT TO ALL RIGHTS CONTEMPLATED HEREUNDER ARISING IN FAVOUR OF AN AFFILIATE OR SUBSIDIARY OF D2L.  D2L AGREES TO ACCEPT SUCH TRUST AND HOLD AND ENFORCE SUCH RIGHTS ON BEHALF OF EACH SUCH AFFILIATE.

  1. Waiver and Indemnity.

By using the Site, you agree to indemnify, defend, and hold harmless (or if prohibited by the laws of your jurisdiction, to the fullest extent of the law, you are liable to), D2L, its directors, officers, employees, affiliates, subsidiaries, agents, contractors, licensors and licensees with respect to any damages, losses and costs, including attorneys’ fees and costs, related to all third party claims, charges, and investigations, caused by (1) your failure to comply with these Terms and Conditions, including your submission of objectionable data or User Content that violates third party rights or applicable laws, (2) any data or User Content you submit using the Site, (3) any breach of privacy claims made by you and (4) your use of, misuse of or inability to use the Site.

D2L reserves the right to terminate your license to the Site at any time, for any reason without notice to you; however, if feasible, D2L will use commercially reasonable efforts to provide you with any notice of termination. If you breach any provision of these Terms and Conditions, then you may no longer use this Site.  Your rights under these Terms and Conditions will terminate automatically if you fail to comply with any term of these Terms and Conditions. In case of such termination, you must cease your use of the Site, and D2L may revoke your access to Site without refund of any fees and without further notice to you. D2L, in its discretion, shall determine whether these Terms and Conditions have been violated.

  1. Legal Compliance.

You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

  1. EXPORT RESTRICTIONS.

THIS SITE MAY BE SUBJECT TO CANADIAN, U.S. OR INTERNATIONAL EXPORT, IMPORT AND /OR USE LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL APPLICABLE CANADIAN, U.S. OR INTERNATIONAL EXPORT, IMPORT AND/OR USE LAWS AND REGULATIONS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE. You represent that you are not a citizen of an embargoed country or a prohibited end user under applicable U.S. or local export and anti-terrorism laws, regulations and lists.  You agree not to export, re-export, divert, transfer or disclose any portion of this Site or any related technical information or materials, directly or indirectly, in violation of any applicable export or import law or regulation.

  1. Choice of law

You agree that all matters relating to the access to, or use of, this Site shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to its conflict of laws principles, and that you will comply with all such applicable laws.

Any dispute between D2L and you or any other person arising from, in connection with or relating to this Site, these Terms and Conditions, any transaction through this Site or any related matters must be resolved before the Courts of the Province of Ontario, Canada sitting in the City of Toronto, and you hereby irrevocably submit and attorn to the exclusive jurisdiction of those Courts in respect of any such dispute (provided that D2L may bring an action against you in another jurisdiction).

  1. Dispute Resolution and Arbitration; Class Action and Jury Trial Waivers.

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS.

Arbitration.  If we are not able to amicably resolve any dispute, claim, action or proceeding between us arising out of or concerning this Site, these Terms and Conditions, any transaction through the Site or any related matters, whether in contract, tort, or otherwise at law or in equity (each, a “Dispute”), then such Dispute shall be resolved only by final and binding arbitration conducted by a single neutral arbitrator and administered by the ADR Chambers (“ADR”) in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the ADR, excluding any rules or procedures governing or permitting class actions, or a similar arbitration service selected by us, in a location mutually agreed upon by us.  The prevailing party shall be entitled to recover its costs and reasonable attorney’s fees.  The arbitrator’s award shall be final, and judgment may be enforced by any court having jurisdiction.  The Dispute, including the scope and enforceability of this arbitration provision shall be determined by the arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions for any reason.

Class Action Waiver.  Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. WE AGREE THAT WE MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER.  Further, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Waiver of Jury Trial.  Each of us hereby knowingly and voluntarily waives our right to trial by jury with respect to any Dispute arising out of or in connection with this Site, these Terms and Conditions, any transaction through this Site or any related matters, or by our conduct or relationship.

  1. General

These Terms and Conditions  constitute the entire agreement between D2L and you with respect to the subject matter hereof, and supersede all communications, representations or agreements, either oral or written, between D2L or its affiliates and you with respect to this subject matter. If for any reason a court of competent jurisdiction finds any provision of these Terms and Conditions or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms and Conditions, and the remainder of these Terms and Conditions shall continue in full force and effect. No waiver of or consent to depart from the requirements of any provision of these Terms and Conditions will be binding unless it is in writing and signed by D2L.  You and D2L are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by these Terms and Conditions.

The provisions of these Terms and Conditions will enure to the benefit of and be binding upon you and D2L and your respective successors and assigns, and, if you are contracting as an individual, your heirs, executors, administrators, and personal representatives.  Except as provided in these Terms and Conditions, none of its provisions are for the benefit of, or enforceable by, any third party. No third party shall have the right to (a) rely on the products or services provided by D2L or (b) seek to impose liability on D2L as a result of the products or services. You may not assign these Terms and Conditions or your rights and obligations under these Terms and Conditions without the express written consent of D2L, which may be withheld in D2L’s sole discretion.  D2L and its service providers may assign these Terms and Conditions and their respective rights and obligations under these Terms and Conditions without your consent.

  1. Language

The parties have required that this agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y attachent soient rédigés en langue anglaise.

 

Contact Information. Any questions or complaints with respect to the Site should be directed to:

D2L Corporation

151 Charles Street West, Suite 400

Kitchener, Ontario, Canada N2G 1H6

Phone: (519) 772-0325

Email: info@d2l.com