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Early Access Terms

Effective Date: The date the Tester first accesses the Product.

These Early Access Terms (“Agreement”) are between D2L Corporation, located at 137 Glasgow Street, Suite 560, Kitchener, Ontario N2G 4X8 (“D2L”), and any individual or entity who accesses or uses the Product, as defined below (“Tester”). By accessing or using the Product, Tester agrees to be bound by these Terms. If Tester does not agree, they must not access or use the Product.

1. Purpose

The purpose of this Agreement (“Purpose”) is for D2L to disclose and make available a limited availability version of certain D2L products or features (“Product”), and for Tester to use, evaluate, and provide feedback to D2L. The specific Products made available under this Agreement are identified in a separate written communication from D2L (such as an invitation email or D2L Early Access Program Participation Confirmation).

2. License and Preview Period

Tester is granted a limited, non-exclusive, non-transferable license to access and use the Product solely for evaluation purposes for a period of 90 days from first access unless terminated earlier or extended by D2L in writing (the “Preview Period”). Tester agrees to test and evaluate the Product and to provide feedback to D2L, relinquishing any rights to the Product at the end of the Preview Period.

During the Preview Period, D2L’s engineering and product teams may, at their discretion, provide support to Tester during normal business hours.

Tester understands and agrees that the Product:

  • is a pre-release, limited availability version;
  • is subject to change in scope, functionality, and design at any time;
  • may store or process data outside of the Tester’s jurisdiction;
  • is provided “as is” without warranties of any kind or service level commitments;
  • may be used in either test or production environments at Tester’s discretion and risk.

3. Confidentiality

By accessing the Product, Tester acknowledges that D2L is disclosing to Tester certain confidential, proprietary, and trade secret information (“Confidential Information”). Confidential Information includes, but is not limited to:

  • the Product;
  • documentation, diagrams, schematics, specifications;
  • performance data, design details, business or financial plans;
  • any information disclosed by D2L in connection with the Product;
  • any feedback, suggestions, questions, or other communications from Tester to D2L (“Feedback”).

All such Confidential Information remains the sole property of D2L. Tester agrees that:

  • it will hold Confidential Information in strictest confidence and not disclose it to any third party without D2L’s written consent;
  • it will protect Confidential Information using the same standard of care used to protect its own sensitive information, but not less than a reasonable standard of care;
  • it will restrict disclosure to those with a need to know who are bound by confidentiality terms no less protective than those herein;
  • it will use Confidential Information only for the Purpose.

Confidential Information does not include information that:

  • becomes public through no fault of Tester;
  • was independently developed or known by Tester without obligation of confidentiality;
  • is required to be disclosed by law, provided that Tester gives D2L prompt notice (to the extent permitted) and cooperates with any effort by D2L to obtain protective treatment.

4. Feedback

Tester agrees to report all feedback, ideas, suggestions, testimonials, problems, and enhancement proposals (collectively, “Feedback”) to D2L. Tester hereby assigns to D2L all right, title, and interest in the Feedback. D2L is free to use, disclose, modify, and commercialize such Feedback without restriction, attribution, or compensation.

5. Termination

Tester may terminate participation in the program at any time by ceasing access to and use of the Product. D2L may terminate access to the Product or this Agreement at any time with or without notice.

This Agreement will terminate automatically at the end of the Preview Period, unless terminated earlier. Upon any termination or expiration of this Agreement, Tester shall delete or return all Confidential Information in its possession.

Sections 1 (Purpose), 3 (Confidentiality), 4 (Feedback), 6 (Limitation of Liability), 7 (IP), and 8 (General Terms) shall survive any termination of this Agreement.

6. Cost of Testing

There is no charge to Tester for access to the Product. In exchange, Tester is expected to actively use the Product and provide Feedback.

7. Disclaimer and Limitation of Liability

The Product is provided “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT REMAINS WITH TESTER.

IN NO EVENT SHALL D2L BE LIABLE FOR ANY DIRECT CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF D2L HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Intellectual Property

D2L grants no license to any patent, copyright, trademark, or other intellectual property under this Agreement, including in the Product(s) or Confidential Information, except as expressly set forth herein. All rights not expressly granted are reserved.

9. General Terms

This Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of law principles. If the Customer is unable to agree to the jurisdiction of Ontario due to applicable law, then the governing law shall be the jurisdiction required by such applicable law.

This Agreement is non-transferable. Any attempted assignment is void unless approved by D2L in writing.

Failure or delay to enforce any provision of this Agreement shall not constitute a waiver.

If any provision of this Agreement is found unenforceable, the remaining provisions shall remain in full force and effect.

These Terms constitute the entire agreement between Tester and D2L with respect to the Product and supersede all prior communications. D2L may modify these Terms from time to time. Continued access or use of the Product following changes constitutes acceptance of the modified terms.