D2L Ontario Elementary Digital Resources Trial Terms of Service

Thank you for your interest in D2L!

This Evaluation Agreement (“Agreement”) governs terms and conditions between you (“you”) and D2L Corporation, an Ontario corporation and our affiliates (“we” or “us”). You should review this entire Agreement carefully because all of its terms and conditions will govern your activities on our web site and your access to and use of our Applications and Content. By using or accessing our Applications and Content and/or accepting the terms and conditions where the option is made available to you on our web site, you agree to the terms in this Agreement and in our D2L Privacy Statement. If you are accepting this Agreement on behalf of an entity or organization, you represent and warrant that you have the necessary authority to bind such entity or organization to these terms, and any reference to “you” shall refer to such entity or organization.

1. Definitions
   1. Applications mean the Software applications that you are permitted to access and use under this Agreement.
   2. Content means the digital curriculum resources that you are permitted to access and use under this Agreement.
   3. Documentation is a document related to the Applications that we publish for all clients such as a user’s manual, release notes or is otherwise designated as documentation. Documentation does not include sales and/or marketing materials.
   4. Evaluation Period means a period of thirty (30) days from the earlier of when you (a) first access or use our Applications and Content; or (b) accept the terms and conditions where the option is made available to you on our web site.
   5. Feedback is defined in Section 6.
   6. Your Information includes course content, materials, personal information, and any other data that you upload or enter through your lawful use of the Applications, Content, and/or web site.
2. Arrangement
   1. As is more particularly described in Section 5 of this Agreement, we grant you a license to access and use Applications and Content provided by us to you under this Agreement. You agree not to access (or attempt to access) this site or the Applications and Content by any means other than through the interface we provide, unless you have been expressly allowed to do so by us. You accept the license subject to the terms of this Agreement. In exchange for the grant of the above described license, you agree to
      1. evaluate the Applications and Content as provided herein,
      2. report to us with respect to your use of Applications and Content,
      3. refrain from entering or uploading any personally identifiable information when using the Applications, and
      4. relinquish any rights related to the license, the Applications, Content, and Feedback.
   2. You understand and agree that we may use Google Analytics to track your use of the Applications. Details of how Google Analytics uses cookies and collects and processes data can be found here: google.com/policies/privacy/partners/.
3. Proprietary Rights & Restrictions
   1. We have all appropriate rights and interest in our Applications, Content, Documentation and other Intellectual Property (collectively, the “IP”), and we reserve these rights and privileges in connection with the IP, except as expressly granted to you pursuant to this Agreement. We do not transfer any title or interest in our IP. The IP contains valuable intellectual property of us and our licensors. The IP is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
      1. Except as permitted by this Agreement, you shall not:
         1. attempt to decompile, disassemble, modify the source code of, or reverse engineer the IP;
         2. use, reproduce, transmit, modify, adapt or translate the IP;
         3. rent, lease, license, transfer, assign, sell or otherwise provide access to the IP on a temporary or permanent basis;
         4. alter, remove or cover proprietary notices in or on the IP; or
         5. separate any software included in the Applications from the Applications themselves, or use any software included with the Applications separately from the Applications.
      2. You own and retain all right, title and interest to, or have appropriate possessory rights in Your Information. We make no claim of license, title or ownership to Your Information.
      3. Any default in your obligations under this section may cause us irreparable harm. If you take or threaten to take any action that may infringe on our IP rights, we may immediately suspend or terminate your access to Applications, and/or seek injunctive or other equitable relief in addition to any damages or other remedies to which we may be entitled.
   2. Confidentiality
      1. In providing access to and use of the Applications and Content, we may disclose to you certain confidential, proprietary trade secret information of ours (the “Confidential Information”). Confidential Information includes the Applications, Content, Documentation, schematics, development tools, specifications, manuals, design documents, marketing information, financial information or our business plans. Confidential Information shall also include Feedback, as well as the results of the evaluation. Confidential Information shall be our sole property, and you agree that you will not disclose any Confidential Information to any third party, except to the extent that such Confidential Information (a) is or becomes generally available to the public through no fault of you own; (b) is rightfully received by you from a third party without limitation as to its use; or (c) is disclosed pursuant to any judicial or governmental request or order. At the termination of this Agreement, you will cease all use of the Applications and return or destroy all Confidential Information in accordance with our instructions.
   3. Limited License
      1. You acknowledge that you shall have only a limited, revocable, non-exclusive, non-transferable license to access and use the Applications, Content and Documentation during the Evaluation Period for the sole purpose of evaluating the Applications and Content in a non-production environment only and providing Feedback to us. You may access the Applications and Content at the site. You are expressly prohibited from using the Applications and Content in a production environment, including any environment that supports your operations. You understand that you are solely responsible to take appropriate measures to isolate and back up your computer systems, including your computer programs, data, and files, and to take other actions necessary to protect your systems and data.
   4. Feedback and Reporting
      1. You shall report to us as soon as practical but in no event later than thirty (30) days after the termination or expiry of the Evaluation Period, any feedback, comments or opinions, including (i) any positive or negative observations and comments about the Content including those derived from or related to performance information or analyses such as benchmarks; and (ii) any ideas or suggestions pertaining to the Content (collectively, “Feedback”). By submitting Feedback to us, you acknowledge and agree that (a) you have all rights necessary to provide Feedback to us under the terms of this Section 6, but no right to disclose Feedback in any manner to any third party; (b) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) we shall be entitled to use and disclose such Feedback for any purpose, in any way, in any media worldwide; (d) the Feedback becomes our property and Confidential Information without any obligation to you; and (f) you are not entitled to any compensation or reimbursement of any kind from us.
   5. Termination
      1. You may terminate this Agreement at any time prior to expiration or termination of the Evaluation Period by relinquishing your access to and use of the Applications and Content. We may terminate this Agreement immediately and at any time. Your obligations in Section 4 (Confidentiality) shall survive the termination of this Agreement, along with any other obligations which by their nature are intended to survive. If not earlier terminated by either party in accordance with this Section 7, this Agreement shall terminate automatically upon the end of the Evaluation Period.
   6. Warranties
      1. ACCESS TO AND USE OF THE APPLICATIONS AND CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, WE, OUR LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE APPLICATIONS AND CONTENT DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WE DO NOT WARRANT OR REPRESENT THAT THE APPLICATIONS AND CONTENT OR ACCESS TO THEM WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE OR ERROR-FREE, OR THAT OUR SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT OUR SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES.
   7. Liability Limitations
      1. NEITHER WE NOR OUR SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR THE INABILITY TO USE THE APPLICATIONS AND CONTENT OR ACCESS DATA, INFORMATION OR CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE APPLICATIONS AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTORY, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. OUR TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO ONE UNITED STATES DOLLAR ($1). OUR SUPPLIERS SHALL HAVE NO LIABILITY TO YOU FOR ANY REASON.
      2. You are responsible for your content and transmissions, including Your Information, over our network. You agree that you will not use the Applications and Content for illegal purposes, to infringe the rights of a third party, or to interfere with or disrupt our network (“Disruption”). Disruptions include distribution of unsolicited advertising or chain letters, defamatory, libelous or offending content, propagation of computer worms and viruses, and unauthorized use of the network to enter, or attempt to enter, another machine or our or client space. If a Disruption occurs, we may, in our reasonable discretion, immediately remove the Disruption, terminate the mode of communication, suspend your access to the Applications or terminate this Agreement, and you are liable to us for claims arising from any Disruption.
      3. No act or omission by us under this Agreement shall be interpreted or construed as being for the benefit of, or creating any obligation toward, any third party or legal entity other than you.
   8. General
      1. Assignment. Neither this Agreement nor any rights hereunder may be assigned or transferred by you, whether directly or by operation of law, without our prior written consent. Any assignment or transfer of this Agreement without our prior written consent shall constitute a material breach of this Agreement.
      2. Governing Law. This Agreement is governed by the laws of the province of Ontario, without regard to its conflict of laws principles. Legal action arising pursuant to this Agreement 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 from this Agreement. You agree to waive any right to a jury trial.
      3. You acknowledge that your use of the Applications and Content will involve transmission over the Internet and other networks, only part of which may be owned or controlled by D2L. You further acknowledge that your data may be accessed by unauthorized parties when communicated across the Internet, network or other electronic means. D2L is not responsible for any data which is delayed, lost, altered, intercepted or stored during its transmission.
      4. Third Parties. Some Applications and Content may be provided or hosted by our third party vendors. You agree that D2L may allow such third party providers to access your data as required for the interoperation of such vendor software or services with the Applications and Content. D2L shall not be responsible for any disclosure, modification or deletion of your data resulting from any such access by vendors.
      5. Remedies Cumulative. All rights and remedies under this Agreement are cumulative and in addition to all our other rights and remedies at law or in equity.
      6. Notices. All notices shall be in writing and delivered (a) by hand, (b) by registered mail, postage prepaid, return receipt requested, (c) reputable overnight delivery service, (d) by facsimile, or (e) by email, provided that the sender retains proof of successful transmission. All notices shall be deemed received, if delivered by hand, on the date of delivery; if mailed, on the date of receipt appearing on the return receipt card; if sent by courier, on the date recorded by the courier company as having been received by the addressee; or, if sent by facsimile, on the date of receipt by the facsimile machine when it reports that the transmission is complete.
      7. Import/Export Controls. You shall comply with all applicable export, re-export and foreign policy laws that may be imposed by the Canadian/United States government.
      8. Products and Services Analysis. To deliver the Applications and Content required under this Agreement, we may collect, analyze, and interpret data elements acquired by, associated with, or provided in the use of Applications and Content (“Product and Service Analysis”). All individual data elements of the Product and Service Analysis are property of their respective owners and shall be governed by the Confidentiality and Intellectual Property provisions of this Agreement. All usage data related to performance or use of the Applications, Content, and algorithm, computational, or cumulative results of the Product and Service Analysis are wholly owned by us. This provision is in addition to, and not a substitute for, any other provision of this Agreement.
      9. Entire Agreement. This Agreement contains the entire understanding between us with respect to its subject matter. All prior agreements, representations, inducements and negotiations, and any and all existing contracts previously executed between us with respect to this subject matter are superseded hereby.
      10. Severability. If a court declares void or unenforceable any term of this Agreement, the remaining terms and provisions of this Agreement shall remain unimpaired and the invalid term shall be replaced by a valid term that comes closest to the intention underlying the invalid term.
      11. Independent Parties. We are independent parties, and neither of us is an agent, employee, partner, joint venturer or legal representative of the other.

_{Last Modified: 19/10/2021
† The D2L family of companies includes D2L Corporation, D2L Ltd., D2L Australia Pty Ltd, D2L Europe Ltd and D2L Asia Pte. Ltd.}