This Agreement governs terms and conditions between you on your own behalf, and (if applicable) on behalf of your entity or organization (“Client”) and D2L Ltd., a Maryland corporation. You should review this entire Agreement because all of the terms and conditions are important and create a legal agreement that, after being accepted by you, applies to you and, if applicable, to your entity or organization. By using or accessing our Services and/or accepting the terms and conditions where the option is made available to you on our web site, (i) you agree to the terms in this Agreement; and (ii) you represent and warrant that you have the necessary authority to bind your entity or organization to these terms.
- Services. For this Agreement, “Services” means the applications made available to Client and/or any other material, duty, function or task D2L provides, facilitates, makes available or performs under this Agreement. D2L shall maintain, and shall see that its vendors maintain commercially reasonable administrative, physical and technical safeguards for the Client Data (as defined in section 7 below). Client acknowledges that Client’s use of Services will involve transmission over the Internet and other networks, only part of which may be owned or controlled by D2L. D2L is not responsible for any Client Data which is delayed, lost, altered, intercepted or stored through no fault of D2L.
- Grant of Use. D2L shall permit Client to use the Services in a non-exclusive, non-transferable, time-limited (revoked upon termination) manner as agreed herein up to the lesser of (a) the number of Active Users specified in the applicable Order and (b) 10 Active Users. Active User means a User Model that accounts for any person who logs in at least once during any consecutive 12-month period from the Effective Date of this Agreement. For clarity, those persons who log into the Cloud Services for the sole purpose of providing or administering instruction will not be considered an Active User.Client may use or access Services for its use only. No third party, other educational institution or business group or entity may make use of, or obtain access to, Services without a separate agreement.
- Reservation of Rights, Restriction on Use. D2L reserves all rights not explicitly granted to Client under this Agreement. Client agrees not to reverse engineer, hack or attempt to hack into, decompile or disassemble the Services.
- Confidentiality & Proprietary Information. Client’s use of the Services is subject to confidentiality restrictions. Client shall not furnish the Services or D2L’s Confidential Information to any unauthorized person or entity. “Confidential Information” means information provided to Client about D2L’s products or services, business, affairs, vendors, computer systems, installations or clients, to the extent that the information might reasonably be expected to be confidential. Client acknowledges that the Services provided are proprietary to D2L.
- Time & Storage Limits. Client’s use of and access to the Services is time-limited. This Agreement shall start on the Order Start Date (“Effective Date”) and continue until the earlier of a) D2L elects to terminate the Services by providing no less than 7 days written notice and b) the Order End Date . No Client Data or other data will be archived, or stored, and D2L shall not be responsible or liable for archiving or storing any data during or after the Agreement ends. Upon termination or expiration of this agreement, Client shall cease use of Services.
- Support and Maintenance. D2L shall provide support on an as-is basis.
- Client Data. Client owns and retains all right, title and interest to, or has appropriate possessory rights in any information, data, results, or other materials uploaded to or through the Service (“Client Data”). D2L makes no claim of title or ownership to or in Client Data. Client permits D2L to use Client Data to the extent required to provide and perform the Services under this Agreement. If Client provides D2L with materials owned or controlled by Client or with use of, or access to, such materials, Client grants to D2L all rights and licenses that are necessary for D2L to fulfill its obligations hereunder.
- Disclaimer of Warranty. D2L warrants that the Services provided to Client under this Agreement will achieve in all material respects, the functionality described in the applicable documents published by D2L for all clients such as user’s manual or release notes (“Documentation”). Except as set forth in this Agreement, the Services are provided under this Agreement “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK, INCLUDING DIRECT AND INDIRECT DAMAGES, ARISING OUT OF THE USE OR PERFORMANCE OF SERVICES REMAINS WITH CLIENT. IN NO EVENT SHALL D2L BE LIABLE FOR ANY 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 PRODUCTS AND SERVICES, EVEN IF D2L HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THE LAW PROHIBITS A COMPLETE WAIVER OF LIABILITY, D2L’S MAXIMUM LIABILITY SHALL NOT EXCEED FIVE HUNDRED UNITED STATES DOLLARS (US$ 500.00).
- Feedback. Client shall report to D2L throughout the term, and also as soon as practical but in no event later than thirty (30) days after the termination or expiry of this Agreement, any feedback, comments or opinions, including (i) any positive or negative observations and comments about the Services including those derived from or related to performance information or analyses such as benchmarks; and (ii) any ideas or suggestions pertaining to the Services (collectively, “Feedback”). By submitting Feedback to D2L, Client acknowledges and agrees that (a) it has all rights necessary to provide Feedback to D2L under the terms of this section, but no right to disclose Feedback in any manner to any third party; (b) D2L is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) D2L shall be entitled to use and disclose such Feedback for any purpose, in any way, in any media worldwide; (d) the Feedback becomes D2L’s property and Confidential Information without any obligation to Client; and (f) Client is not entitled to any compensation or reimbursement of any kind from D2L for such Feedback.
- Governing Law. The laws of the State of Maine govern this Agreement. Client agrees that any dispute relating to this agreement shall be filed in the courts of the State of Maine.
Updated: May 27, 2021