This End-User License Agreement (“EULA”) is a legal agreement between you individually, or if you are authorized to acquire Desire2Learn Campus Life on behalf of another entity, then the entity for whose benefit you act, (in either case, “You”) and Desire2Learn Incorporated, or its subsidiaries, divisions or affiliates (collectively, “Desire2Learn”) for Desire2Learn Campus Life, which includes software and electronic documentation (collectively, the “Product”). As required by Apple Inc. (“Apple”) in order to offer the Product through its distribution channels, this EULA is concluded between You and Desire2Learn. This EULA is not concluded between You and Apple. By installing, copying, or otherwise using the Product, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, do not download, install or use the Product, or any portion thereof, and delete all copies of the Product.
Nothing in this EULA shall be construed as an impairment of Desire2Learn’s ability to comply with applicable laws.
Desire2Learn Campus Life allows You to access and transmit information provided by third parties and Yourself (“Data”) to or from one or more instances of the Desire2Learn Learning Environment, Desire2Learn Learning Object Repository, Desire2Learn ePortfolio or other Desire2Learn products.
SPECIFIC TERMS FOR THE PRODUCT
Age Requirement. 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.
Relationship with App Store Terms of Service. As required by Apple, to the extent that the usage rules of this EULA are less restrictive or conflict with the usage rules of the App Store Terms of Service as of the date you agree to this EULA, the usage rules of the App Store Terms of Service terms that are more restrictive or conflict with the usage rules of this EULA will be substituted for the usage rules of this EULA, which are conflicting, and the substituted usage rules will govern Your rights and responsibilities associated with Your use of the Product only with respect to the scope of the conflicting usage rules.
Intellectual Property Ownership. Except as expressly set forth in this EULA, Desire2Learn retains all right, title, and interest in the Product. This EULA grants You no right, title, or interest in any trademarks owned or licensed by Desire2Learn, including Desire2Learn or third-party trademarks. As required by Apple, in the event of any third party claim that the Product or Your possession and use of the Product infringes that third party’s intellectual property rights, Desire2Learn, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Grant of License. Subject to the terms of this EULA, Desire2Learn grants You a limited, non-exclusive, personal, non-commercial, non-assignable, non-transferable license to install and use one (1) copy of the Product on a single compatible device, that You own or control and which has not been modified, except in accordance with the manufacturer’s recommendations (“Device”), and as permitted by the usage rules set forth in the App Store Terms of Service. The Product is in “use” when it is loaded into temporary or permanent memory on a Device. You are granted the right to back-up or archive the Product in accordance with the standard operating procedures applicable to Your Device. You may not sell, transmit, transfer, redistribute, rent, or lease the Product.
Legal Use. Notwithstanding any other provision of this EULA, You may access and use the Product for lawful purposes only. You agree to not use the Product to violate any applicable law.
Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not, nor may You assist another to, modify, reverse engineer, decompile, create derivative works from, or disassemble the Product for any reason whatsoever, including for the purpose of creating a competitive product.
Security Measures. You may not, nor may You assist another in, interfering with, hacking, or otherwise compromising any security measures of the Product or using the Product to interfere, hack, or otherwise compromise any security measures of other products or systems, including Desire2Learn products and Data.
Objectionable Data and Errors. You understand that in using the Product You may encounter Data that may be offensive, indecent, objectionable, or that contains errors or inaccuracies. Nevertheless, You agree that Your use of the Product is at Your sole risk and that Desire2Learn shall have no liability to You for Data that may be found to be offensive, indecent, objectionable erroneous or inaccurate.
Data Restrictions. You may not transmit or communicate any Data that (i) You do not have legal authority to transmit or communicate; (ii) contains viruses, time bombs or other malicious computer code; (iii) infringes another’s intellectual property rights; (iv) is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; or (v) that adversely affects Desire2Learn’s products or services. In addition, You may not use the Product to improperly access another’s Data or to misrepresent Your affiliation or identify.
Access to Data. You acknowledge and agree that the Data may not be under the control of Desire2Learn, and that You may be required to enter into one or more agreements with third parties (including Your academic institution, employer or mobile carriers) to access and/or transmit Data. Such third parties may have privacy policies to which the Data and Your use thereof may be subject. You are responsible for complying with the terms and conditions of those agreements and privacy policies.
You further acknowledge and agree that use of the Product may result in data, bandwidth or additional third party charges (i.e.: Your mobile carrier and/or internet provider) and that these charges are Your responsibility.
Disclaimer of Warranties. The Product is distributed “as is” without warranties, conditions, or guarantees, express or implied, oral or written, of any kind. Without limiting the foregoing, Desire2Learn disclaims all warranties of merchantability, non-infringement, fitness for a particular purpose, course of dealing or usage in trade. In no event will Desire2Learn be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, or loss of Data) arising out of the use or the inability to use the Product, to the maximum extent of applicable law. To the extent not specifically prohibited by the laws of Your jurisdiction:
(a) If the Product fails to operate in accordance with documentation, You acknowledge and agree that Desire2Learn may not be able to resolve the problem and is not required to do so under any time limitation.
(b) Desire2Learn is not responsible for the availability, use, performance or non-performance, of the Product.
(c) The Product may at any time cease to be able to access or transmit Data, and You will have no recourse against Desire2Learn should this occur.
As required by Apple, if the laws of Your jurisdiction prohibit or limit disclaimers to warranties, then to the extent that a court of competent jurisdiction determines or Desire2Learn agrees that the Product breaches a warranty owed to You, then You may notify Apple and Apple will refund the purchase price for the Product to You.
To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Product.
Maintenance and Support. Desire2Learn is solely responsible for providing any maintenance and support services with respect to the Product, as specified in this EULA or as required under the laws of Your jurisdiction. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Product.
Product Claims. Subject to the terms of this EULA, Desire2Learn, not Apple, is responsible for addressing any claims You or any third party have relating to the Product or Your possession or use of the Product, including, but not limited to, (i) product liability claims, (ii) any claim that the Product fails to conform to any applicable legal or regulatory requirement and (iii) claims arising under consumer protection or similar legislation.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DESIRE2LEARN DISCLAIMS ALL LIABILITIES TO YOU, THROUGH ANY ACT OR OMISSION AS IT RELATES TO THE UNLAWFUL OR UNAUTHORIZED USE OF THE PRODUCT. YOU ARE SOLELY RESPONSIBLE FOR ALL DATA MADE AVAILABLE TO OR BY THE PRODUCT OR DESIRE2LEARN.
Waiver and Indemnity. By using the Product, You agree to indemnify, defend, and hold harmless (or if prohibited by the laws of Your jurisdiction, You may be liable to), Desire2Learn, its directors, officers, employees, affiliates, subsidiaries, agents, contractors, licensors and licensees with respect to any claims arising out of Your use of, misuse of or inability to use the Product.
Termination. Desire2Learn reserves the right, but not the obligation, to terminate Your license to the Product at any time, for any reason without notice to You; however, if feasible, Desire2Learn will use commercially reasonable efforts to provide You with any such notice of termination.
Legal Compliance. As required by Apple, 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.
EXPORT RESTRICTIONS. THE PRODUCT MAY BE SUBJECT TO CANADIAN, U.S. OR INTERNATIONAL EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL APPLICABLE CANADIAN, U.S. OR INTERNATIONAL EXPORT LAWS AND REGULATIONS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE.
Third Party Beneficiary. As required by Apple, Apple and Apple’s subsidiaries are third party beneficiaries of this EULA. Upon acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against You as a third party beneficiary of the EULA.
No Guarantee of Continued Use or Availability. Desire2Learn reserves the right to modify, update, supplement, limit, discontinue, remove or disable access to the Product without notice to You and Desire2Learn shall not be liable to You or any third party should it exercise such rights. From time to time, Desire2Learn may make available updates or upgrades to the Product via software download or other means. Such download may occur automatically without the need for any act on Your part, or it may require You to manually download an update or upgrade through the same source from which the Licensed Application was originally downloaded. Certain functions of the Product may be modified or discontinued as a result of any such update or upgrade, or may not be available if You have not downloaded all updates and upgrades made available by Desire2Learn or otherwise.
Modification. Desire2Learn reserves the right, at any time and from time to time, to update, revise supplement, and otherwise modify this EULA and to impose new or additional rules, policies, terms or conditions on Your use of the Product. Such updates, revisions, supplements, modifications, and additional rules, policies terms and conditions (collectively, the “Additional Terms”) will be effective immediately upon release and incorporated into this EULA. Your continued use of the Product will be deemed to constitute Your acceptance of any and all such Additional Terms. All Additional Terms are incorporated into this EULA by reference.
No Waiver. The failure to enforce any provision of this EULA shall not be deemed a waiver of such provision. All rights under this EULA are in addition to any other rights and remedies provided by law or in equity.
Severability. If any provision of this EULA is found by a court of competent jurisdiction to be unenforceable the remaining terms and provisions shall continue in full force and effect.
Survivability. All provisions which must survive in order to give effect to their meaning, shall survive any expiration or termination of this EULA.
Governing Law. This EULA is formed in and governed by the laws of the Province of Ontario, without regard to its conflict of laws principles. Legal action arising pursuant to this EULA shall be filed in the courts of the Province of Ontario. The United Nations Commission on International Trade Law Conventions on Contracts for the International Sales of Goods and Related Transactions is specifically excluded. The parties waive any right to a jury trial.
Entire Agreement. With the exception to This EULA is the entire agreement between Desire2Learn and You relating to the Product and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the subject matter hereof.
Contact Information. Any questions, complaints or claims with respect to the Product should be directed to:
151 Charles Street West, Suite 400
Kitchener, Ontario, Canada N2G 1H6
Phone: (519) 772-0325
I have reviewed and am prepared and authorized to accept this EULA.