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This Limited Development and Testing 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. By using or accessing our Applications 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.
- Applications mean our Software applications resident on our computers that you are permitted to access and use under this Agreement.
- Documentation is a document published by D2L for all users of the Products and Services such as a user’s manual, release notes or materials otherwise designated as documentation. Documentation does not include sales and/or marketing materials.
- Evaluation Period means a period of sixty (60) days from the earlier of when you (a) first access or use our Applications; or (b) accept the terms and conditions where the option is made available to you on our web site.
- Hosting is the use of Applications on D2L equipment within D2L facilities.
- Intellectual Property is any present or future development work, copyright, patent, trade-mark, trade name, service mark, design, program, procedure and method of computation, trade secret, data model, invention, drawing, plan, specification, process or similar property, including but not limited to the Applications and Software.
- Network is, collectively, D2L’s hardware, Software, communications, cabling and other related resources through which you access services.
- Products and Services include Applications, Software, Hosting, consulting and any other duty, function or task D2L performs under this Agreement.
- Software is a D2L software application or any part thereof in object code form licensed to or accessed by you.
Proprietary Rights & Restrictions
- We have all appropriate rights and interest in our Applications, 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.
- Except as permitted by this Agreement, you shall not:
- attempt to decompile, disassemble, modify the source code of, or reverse engineer the IP;
- use, reproduce, transmit, modify, adapt or translate the IP;
- rent, lease, license, transfer, assign, sell or otherwise provide access to the IP on a temporary or permanent basis;
- use or cause or allow a third party to use the Products and Services in any way to develop competing products or services; or
- alter, remove or cover proprietary notices in or on the IP.
- Any default in your obligations under this Section may cause irreparable harm to D2L. If you take or threaten any action that may infringe on D2L’s Intellectual Property rights, D2L may seek injunctive or other equitable relief in addition to any damages to which D2L may be entitled.
Use of Applications
- You may use or access Applications solely for the purposes of software development and testing. You may not use Applications for production or content production, nor permit use of the Applications by anyone outside your organization without permission of D2L and the execution by such parties of an appropriate non-disclosure agreement.
- You will be permitted to access the Applications during the Evaluation Period, after which time D2L may terminate your access to the Applications. Notwithstanding the foregoing, D2L may suspend or terminate your access to the Applications at its discretion at any time.
- D2L is not obligated to provide any support to you in connection with this Agreement; support may be available through a separate support agreement.
- D2L may view your site for the purpose of ensuring your compliance with the terms of this Agreement. If such viewing reveals that your use of Applications exceeds its permitted use, you shall cooperate with a reasonable audit (if necessary) and pay D2L’s then-current fees and reasonable administrative fees for such excessive use.
- You are responsible for the content of your transmissions, including user information, over D2L’s Network. You agree that you will not use the Network for illegal purposes, to infringe the rights of a third party, or to interfere with or disrupt the 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 Network machine or organizational instance. If a Disruption occurs, D2L may, in its reasonable discretion, immediately remove the Disruption, terminate the mode of communication, suspend your access to the Network or terminate this Agreement.
- ACCESS TO AND USE OF THE APPLICATIONS 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 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 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.
- 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 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.
- Claims. Each Party shall indemnify, defend and hold harmless (the “Indemnifying Party) the other Party (the “Indemnified Party”) from any direct costs, expenses, damages, judgments or settlements incurred because of an action or claim by third parties alleging that Indemnifying Party’s Intellectual Property infringes upon the intellectual property rights of a third party in Canada or the United States, but only if the indemnified Party (a) promptly notifies the Indemnifying Party in writing of any claim; (b) allows the Indemnifying Party to control the defence or settlement of the claim; and (c) takes no action that, in Indemnifying Party’s reasonable judgment, impairs the Indemnifying Party’s defence of the claim.
- Exclusions and Limitations. This indemnity shall not apply to the extent that the infringement claim results from (a) the Indemnified Party’s unauthorized modification to Applications or Software; (b) the Indemnified Party’s failure to install an Upgrade that would have avoided the claim; (c) the combination of the Software with third party products not provided by the Indemnifying Party; or (d) the Indemnifying Party’s compliance with specifications furnished by the Indemnified Party.
- D2L Options. If a claim arises and D2L is the Indemnifying Party, D2L shall (a) substitute equivalent non-infringing Applications or Software; (b) modify the Applications or Software so that they no longer infringe but remain functionally equivalent; or (c) if neither (a) nor (b) is reasonably feasible, cancel the Agreement, and refund the unused pro-rated amounts.
- Entire Liability. This section states the entire liability and obligation of the Parties regarding infringement claims.
- During the term of this Agreement, each Party may disclose certain information that is confidential to that Party (“Confidential Information”). Confidential information may include information that a Party provides about its products or services, business, affairs, computer systems, installations or clients and other information that the disclosing Party might reasonably expect to be kept confidential. No Party shall furnish Confidential Information to any unauthorized person or entity. D2L has competitors in the marketplace which are known or should be reasonably known to you. You will take the necessary steps to ensure they do not allow D2L Confidential Information to be given to D2L’s competitors.
- Neither Party shall be bound by confidentiality obligations if the Confidential Information (a) is required to be disclosed pursuant to court or regulatory order, provided that, where feasible, the owner of the Confidential Information is given a reasonable opportunity to limit the extent of disclosure; (b) was already rightfully in the receiving party’s possession before negotiations commenced that led to this Agreement; (c) is learned from a third party under no apparent duty of confidentiality and is not otherwise protected under law; or (d) becomes part of the public domain other than as a result of a breach of this section and is not otherwise protected under law.
Fees & Payment
- If fees are due in connection with this Agreement, D2L may invoice you immediately upon your acceptance of this Agreement and you shall pay such fees within thirty days of the date of D2L’s invoice. Unless otherwise specified, fees will be in U.S. Dollars.
Term & Termination
- This Agreement shall be effective as of the date you agree to it, and will remain in effect for as long as you have access to the Applications.
- This Agreement may be terminated by either Party for any reason by providing ten days’ advance written notice to the other Party.
- This Agreement may be terminated by either Party immediately for (i) the other Party’s breach of the provisions of the Confidentiality or Proprietary Rights & Restrictions sections of this Agreement, or (ii) if the other Party ceases conducting business in the normal course, become insolvent, makes a general assignment for the benefit of creditors, seeks creditor protection, suffers or permits the appointment of a receiver for its business or assets, or becomes bankrupt.
- 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. You agree to waive any right to a jury trial.
- 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.
- Notices. All notices under this Agreement shall be sent by courier or first class mail to the Parties’ addresses as provided to the other Party from time to time.
- 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 governments.
- Products and Services Analysis. To deliver the Applications required under this Agreement, we may collect, analyze, and interpret data elements acquired by, associated with, or provided in the use of Applications (“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 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.
- Survival. The provisions of this Agreement regarding Proprietary Rights & Restrictions, Limitations of Liability, Confidentiality, and any other provisions intended by their nature to extend beyond the term of this Agreement will survive any termination, non-renewal, or expiration of the Agreement.
- Amendment. We reserve the right to modify this Agreement at any time, and without prior notice, by posting an amended Agreement that is available at http://brightspace.d2l/legal/limited-development-and-testing-server-terms-of-use. Your continued use of this site indicates your acceptance of the amended Agreement. You should check this Agreement through this link and/or on this web site periodically for modifications.
- Severability. If any provision of this Agreement is found invalid or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
- Entire Agreement. This is the complete Agreement between the Parties and supersedes all prior and contemporaneous discussions, representations, proposals, offers and oral or written communications of any nature related to the subject matter herein.
Last Modified: 02/12/2014
† The D2L family of companies includes D2L Corporation, D2L Ltd., D2L Australia Pty Ltd, D2L Europe Ltd and D2L Singapore Pte. Ltd.