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D2L ePortfolio Mobile Application End-User License Agreement

PLEASE READ THESE D2L EPORTFOLIO MOBILE APPLICATION END USER LICENSE AGREEMENT AS SET OUT BELOW (the “EULA”) CAREFULLY BEFORE USING D2L EPORTFOLIO MOBILE APPLICATION, WHICH INCLUDES THE SOFTWARE AND DOCUMENTATION (the “Product”), A DIRECT TO CONSUMER COMPOSITE OFFERING FOR LEARNERS THAT IS DEVELOPED IN COMBINATION WITH D2L EPORTFOLIO SERVICES AND SUBJECT TO APPROPRIATE AUTHENTICATION, THE PRODUCT ALLOWS YOU TO ACCESS, MODIFY AND ADD TO CONTENT MADE AVAILABLE TO YOU THROUGH UPLOADING TO OR DOWNLOADING FROM THE D2L EPORTFOLIO AT YOUR INSTITUTION OR MYDESIRE2LEARN (“DATA”) USING YOUR COMPATIBLE MOBILE DEVICE AND A WIRELESS CONNECTION. 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 PRODUCT.

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

1. Terms and Conditions of Use of Product

Your use of this Product is conditional on your acceptance of this EULA, D2L’s Privacy Statement (https://www.d2l.com/contact/privacy/) which is incorporated by reference into this EULA and the applicable terms of use and service of D2L ePortfolio service at your institution or myDesire2learnTM which is incorporated by reference into this Eula. By clicking on the appropriate button below or by downloading, installing, copying, activating or otherwise using the Product, you agree on your own behalf or an individual (including in case of a parent or legal guardian) or entity for whose benefit you are authorized to act (collectively referred to herein as “you”), to accept and abide by this EULA for each use of this Product. If you are under the age of majority in your jurisdiction, you must review this EULA with your parent or legal guardian to make sure that you and your parent or legal guardian understand this EULA and agree to be bound by them. If you do not agree to abide by this EULA, do not download, install or use the Product, or any portion thereof, and delete all copies of the Product. You agree to have this EULA and any related information made available to you, and to otherwise have communications between you and us occur, electronically.

As required by Apple Inc. (“Apple”) in order to offer the Product through Apple’s distribution channels, this EULA is concluded between you and D2L. This EULA is not concluded between you and Apple.

By clicking on the appropriate button below or by downloading, installing, copying, activating or otherwise using the Product, you affirm that you (i) are at least the age of majority in your jurisdiction; or (ii) are at least 13 years old and have your parent’s or legal guardian’s consent to agree to this EULA. If you are younger than 13 years of age, you may not download, install or use the Product, or any portion thereof, and delete all copies of the Product.

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 Product or otherwise change any part of this EULA, in whole or in part, at any time. If D2L exercises this right, the “Last Update” notice at the top of this document shall be amended to reflect the last date of such changes. Changes will be effective as of the date the terms were changed. It is your responsibility to check this EULA each time you access this Product to determine whether any changes have been made, including by checking the date of the “Last Update” at the top of this EULA. If any change to this EULA is not acceptable to you, you must discontinue your use of this Product, or any portion thereof, and delete all copies of the Product immediately. Your continued use of this Product after any such changes are posted will constitute acceptance of those changes. This EULA applies exclusively to your use of this Product 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 Product, including: (i) changing the availability of, restricting access to, or imposing limits on any or all features or services on, or links to, this Product; and (ii) removing, adding, modifying or otherwise changing any fees or charges arising out of use of this Product or any features of this Product. From time to time, D2L 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 download manually an update or upgrade through the same source from which the Product was originally downloaded. Certain functions of the Product may be modified or discontinued as a result of any update or upgrade, or may not be available if you have not downloaded all updates and upgrades made available by D2L or otherwise. D2L reserves the right, in its sole discretion, to correct any errors or omissions in any portion of this Product 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 Product. This EULA also limits D2L’s liability to You. See Disclaimer of Warranties and Limitation of Liability Sections for details.

2. 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, those more restrictive and conflicting usage rules of the App Store Terms of Service terms will be substituted for the usage rules of this EULA, 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.

3. Intellectual Property Ownership.

Except as expressly set forth in this EULA, D2L, D2L partners, D2L licensors, and third parties, as applicable, retain all right, title, and interest in the Product. You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute Product or components of the Products in any form or by any means without prior written agreement from D2L or the rightful owner of such components, as applicable. All trademarks or service marks are property of their respective owners. This EULA grants you no right, title, or interest in any trademarks owned or licensed by D2L, including D2L or third-party trademarks. As required by Apple, if a third party claims that the Product or your possession and use of the Product infringes that third party’s intellectual property rights, D2L, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

4. Grant of License.

Subject to the terms of this EULA and the enabling of applicable extensibility, D2L 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.

5. 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.

6. 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.

7. 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 D2L products.

8. Objectionable Content and Errors.

You understand that in using the Product you may encounter content 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 D2L shall have no liability to you for content that may be found to be offensive, indecent, objectionable, erroneous or inaccurate.

9. Data Restrictions.

You may not download, store, transmit or communicate any Data that (i) you do not have legal authority to download, store, transmit or communicate; (ii) contain viruses, time bombs or other malicious computer code; (iii) infringe another’s intellectual property rights (including copyrights); (iv) are unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; or (v) adversely affects D2L’s products or services. In addition, you may not use the Product to improperly access another’s Data or to misrepresent Your affiliation or identity.

10. Access to Data.

You acknowledge and agree that Data may not be under the control of D2L, and that you may be required to enter into one or more agreements with third parties (including your organization or mobile carriers) to access and/or transmit Data. These 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. In addition, by accessing Data, you may be processing personally identifiable information as that term is defined in applicable privacy or similar legislation. You are solely responsible for any such Data that is processed on your Device.

11. Privacy Statement.

You should carefully read D2L’s Privacy Statement before deciding to install or use the Product as it is incorporated into this EULA 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 Product 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.

12. 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 Product. As part of the Product, D2L may also automatically upload information about your Device, Your use of the Product, and Product performance. This information that D2L collects may identify you as an individual.

13. Communications.

Any information gathered by D2L through your use of this Product 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 Product. Such information may be shared among D2L and its suppliers, licensors 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.

14. Additional Charges.

You further acknowledge and agree that use of the Product 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.

15. Disclaimer of Warranties.

D2L makes no representation or warranty and there are no conditions this Product and any Data accessed through this Product is appropriate or available for use at any locations outside Canada.

Accessing this Product or any Data accessed through this Product from locations where it is illegal is prohibited. Those who choose to access this Product or and any Data accessed through this Product from other locations do so on their own initiative and are responsible for compliance with local laws.

You acknowledge and agree that this Product (including without limitation the accessed Data) is provided on an “AS IS” basis and that any use of or reliance on this Product shall be at your sole risk. D2L DOES 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 PRODUCT (INCLUDING THE ACCESSED DATA). FOR GREATER CERTAINTY, D2L DOES NOT WARRANT THAT THIS SITE WILL (i) MEET YOUR REQUIREMENTS, (ii) BE COMPATIBLE WITH YOUR DEVICE, (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 PRODUCT, 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 THE PRODUCT, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS OR INTERACTIONS 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 THE PRODUCT FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY D2L.

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 D2L agrees that the Product breaches a warranty owed to you, then you may notify Apple and Apple will refund the purchase price you paid to Apple for the Product.

To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Product.

16. Maintenance and Support.

D2L 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.

17. Product Claims.

Subject to the terms of this EULA, D2L, 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 (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.

18. Limitation of Liability.

YOU AGREE THAT IN NO EVENT WILL D2L OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES (COLLECTIVELY “D2L REPRESENTATIVES”) HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH THIS PRODUCT 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 PRODUCT, DATA ACCESSED USING THIS PRODUCT 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 PRODUCT. YOU ARE SOLELY RESPONSIBLE FOR ALL DATA MADE AVAILABLE TO OR BY THE PRODUCT OR D2L. BY ENTERING INTO THIS EULA, YOU ACKNOWLEDGE THAT D2LN 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.

19. Waiver and Indemnity.

By using the Product, 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 this EULA, including Your submission of objectionable data or Data that violates third party rights or applicable laws, (2) any Data you submit using the Product, (3) any breach of privacy claims made by you and (4) your use of, misuse of or inability to use the Product.

20. Termination.

D2L reserves the right to terminate your license to the Product 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 this EULA, then you may no longer use this Product. D2L, in its discretion, shall determine whether this EULA have been violated.

21. 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.

22. EXPORT RESTRICTIONS.

THE PRODUCT 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 the Product or Data or services or site or any related technical information or materials, directly or indirectly, in violation of any applicable export or import law or regulation.

23. 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.

24. No Third Party Rights.

This EULA is for the benefit of You and D2L only. Except as provided in this EULA, 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 provided by D2L or (b) seek to impose liability on D2L as a result of the Products.

25. Choice of law.

You agree that all matters relating to the access to, or use of, this Product 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 Product, this EULA, any transaction through this Product 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).

26. General.

This EULA 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 and you with respect to this subject matter. If for any reason a court of competent jurisdiction finds any provision of this EULA or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of this EULA, and the remainder of this EULA shall continue in full force and effect. No waiver of or consent to depart from the requirements of any provision of this EULA 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 this EULA.

You may not assign this EULA or your rights and obligations under this EULA without the express written consent of D2L, which may be withheld in D2L’s sole discretion. D2L and its service providers may assign this EULA and their respective rights and obligations under this EULA without your consent.

27. 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 Product should be directed to:

D2L Corporation
151 Charles Street West, Suite 400
Kitchener, Ontario, Canada N2G 1H6
Phone: (519) 772-0325
Email: CustomerService@D2L.com