DISCOVERLINK END USER LICENSE AGREEMENT
(Current at January 24, 2017)
When used in this contract, the following terms have the meanings stated:
“Agreement” means this DiscoverLink End User License Agreement, as amended, modified, or updated and in effect from time to time.
“Content” means (a) all the templates, information and courses which the User has subscribed to that are the proprietary property of DiscoverLink. DiscoverLink Content may include both currently available courses as well as (b) upgrades, modified versions, updates, additions, and copies of the Content, if any, licensed to you by DiscoverLink (c) templates, information and courses licensed to DiscoverLink by third parties and which are provided to Users through LMS.
“DiscoverLink” means DiscoverLink, Inc., a Tennessee corporation. DiscoverLink is the owner and licensor of the LMS and the Content.
“Learning Management System” (and “LMS” or DiscoverLink Learning) means (a) the SCORM (Shared Content Object Reference Model)-compliant learning management system developed by DiscoverLink for managing, tracking and reporting usage of the Content and User generated Content and (b) upgrades, modified versions, updates, additions, and copies of the LMS, if any, licensed to you by DiscoverLink.
“Use” or “Using” means to access or otherwise benefit from using the functionality of the LMS or any Content, or both, in accordance with the Agreement.
“User” means the licensee, the person who signs up for access to, and pays for the specified use of, the selected LMS or Content, or any person authorized by the licensee to use the LMS or Content in connection with the licensee’s business (in each case, also “you,” “your” and “user”).
NOTICES TO USER
BY ACCESSING THIS WEBSITE AND USING ALL, OR ANY PORTION OF, THE DISCOVERLINK LEARNING MANAGEMENT SYSTEM OR THE DISCOVERLINK CONTENT, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT ACCESS THIS WEBSITE OR USE THE LMS OR ANY CONTENT.
Upon payment received by DiscoverLink for the LMS and the Content you wish to use, you are granted by DiscoverLink a personal, nontransferable, non-exclusive, limited, and revocable license to use the DiscoverLink LMS, or Content, or both, as selected and paid for by you. The LMS and Content comprise the proprietary and exclusive educational, training and testing material, and learning management systems, including without limitation, online courses, and interactive multimedia training and learning content, all owned by DiscoverLink , its affiliated companies, or third party licensors. Your use of LMS and Content is expressly conditioned on your acceptance of these terms and conditions of use. By using the LMS or Content, you agree to all the terms and conditions in this Agreement. If you do not agree with any part of the provisions in this Agreement, you may not use the LMS or the Content. DiscoverLink reserves the right to update and change the Agreement from time to time without notice, and your continued use of the LMS or Content will constitute your acceptance of all revisions to the Agreement after the date of change. You can review the most current Agreement at any time at: https://discoverlink.com/staging/learning-invoice-license-agreement/. You should check this page regularly.
TERM AND TERMINATION
Term. This Agreement shall commence on the day of the initial payment by the User to access the LMS and Content. You are agreeing to a 12-month subscription (the “Term”) to access the LMS and Content. During this Term, you will not be entitled to downgrade your purchased LMS Package or Content. You shall have the right to make LMS and Content downgrades or terminate this Agreement within thirty (30) days prior to the end of your Term. If you do not provide notice to DiscoverLink, whether written notice or provide a cancellation notice within the LMS, this Agreement will automatically renew for an additional Term of 12 months.
Termination. Your license is effective until terminated by you or DiscoverLink. Your rights under the license will terminate automatically without notice if you fail to comply with any terms of this Agreement. Upon termination of your license, you must cease all use of the LMS, the Content, or both.
Termination for Cause. If you breach any material term or condition of this Agreement (“Cause”), this Agreement may be terminated by DiscoverLink by giving you 30 days prior notice of the breach, unless you cure the breach within those 30 days. Furthermore, if the breach is by its nature incapable of cure, then DiscoverLink may terminate this Agreement immediately upon written notice.
When you purchase the LMS and/or Content from DiscoverLink, you will be responsible to pay all amounts due which include the payment fee associated with the LMS and Content plus any applicable taxes. You agree to pay the 12-month annual subscription to DiscoverLink for the LMS and Content in one payment that equals the entire subscription cost. DiscoverLink will invoice for initial Program fees on the date that access is granted with a fourteen (14) day grace period for payment. If payment is not received within fourteen (14) days, access will be terminated. Future billing will occur thirty (30) days prior to the renewal date. If you fail to pay any fees within thirty (30) days from the applicable due date on the invoice, DiscoverLink will assess late charges equal to the lesser of 1.5% per month or the maximum rate allowable under applicable law. Failure to fully pay any invoiced amounts within thirty (30) days after the applicable due date is a material breach of this Agreement, and DiscoverLink shall have the right, in its sole discretion, to suspend its performance of the Services and/or terminate this Agreement. If DiscoverLink terminates this Agreement, you will continue to be responsible for payment of past due fees plus interest. You shall be solely responsible for any costs DiscoverLink incurs in its efforts to collect past due amounts, including reasonable attorneys’ fees, court costs and collection agency fees.
You agree, during and after your use of the LMS, or the Content, or both, to indemnify and hold harmless DiscoverLink, (including its affiliates, officers, directors and employees) against all losses, costs, and liabilities, that DiscoverLink incurs, arising out of your breach of this Agreement; (ii) your unauthorized use of the LMS or Content; or (iii) your introduction of any viruses, malware or similar destructive codes.
EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
THE LMS, THE CONTENT AND ALL INFORMATION IN THE CONTENT ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. DISCOVERLINK DOES NOT WARRANT THE PERFORMANCE OF THE LMS OR THE CONTENT, OR THAT THE LMS, OR ANY CONTENT, WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT IT IS ERROR-FREE, THAT THE RESULTS OBTAINED FROM USING THE CONTENT WILL BE ACCURATE, RELIABLE, OR SATISFACTORY, OR THAT ANY ERRORS IN THE CONTENT WILL BE CORRECTED.
DISCOVERLINK DOES NOT WARRANT THAT INTERNET CONNECTIONS AND ACCESS TO THE CONTENT WILL BE AVAILABLE, RELIABLE, UNINTERRUPTED, TIMELY, SECURE, OR SATISFACTORY. DISCOVERLINK MAKES NO WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED) WITH RESPECT TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW DISCOVERLINK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR OTHER INTANGIBLE LOSSES (EVEN IF DISCOVERLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM ANY CAUSE WHATSOEVER. IN NO CASE SHALL DISCOVERLINK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF FIFTY DOLLARS ($50).
THIS AGREEMENT DOES NOT EXCLUDE OR LIMIT ANY WARRANTY OR RIGHT THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED, TO THE EXTENT DISALLOWED, IN RELEVANT JURISDICTIONS.
All source and object code, operating systems and all other materials and proprietary information contained in the LMS and the Content are the copyrighted and exclusive property of DiscoverLink, its affiliated companies, or third party licensors. The DiscoverLink logo, all other service marks, and the names of various products and services described in this Agreement or within the LMS or the Content are service marks of DiscoverLink or its affiliates, or specifically identified third-parties. You may not use any portion of the LMS or any Content, or any other DiscoverLink intellectual property, in any way without our prior express written permission. You may not modify, publish, reproduce, republish, create derivative works, copy, upload, post, transmit, distribute, or otherwise use any LMS material or Content without our prior express written permission. You may not in any case, rent, lease, sublicense, share the Content or access codes, allow third-party access to, or copy, or permit all or any portion of the LMS or Content to be copied onto another user’s computer or device.
Assignment; No Shared Use. DiscoverLink may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not assign this Agreement, or any part of it, to any other party. Your rights under this Agreement are exclusive to you and only you may exercise them. Any attempt by you to assign this Agreement, or to share access to the LMS or Content, is a material violation of this Agreement, and in many circumstances is unlawful.
Only Authorized Uses are Permitted. Your use of the LMS and Content is limited to its contemplated functionality. The Content may never be used in an unauthorized manner. You may not use technology or any other means to gain unauthorized access to any part of the DiscoverLink computer system or other user accounts. You may not use or introduce, and you must take reasonable precautions not to introduce, automated processes, bots, spiders. screen scrapers, viruses, malware or similar destructive code.
Entire Agreement. The Agreement, as amended from time to time, constitutes the entire Agreement between you and DiscoverLink and governs your use of the LMS and the Content.
Governing Law. The Agreement, and the relationship between you and DiscoverLink, shall be governed by the laws of the State of Tennessee without regard to its conflict of law provisions. In case of any litigation arising from this Agreement, the finally prevailing party will be entitled to recover its attorneys’ fees and costs.
Timing of Disputes. You agree with us that regardless of any law to the contrary, any claim or cause of action arising out of or related to your use of the LMS, or any Content or this Agreement must be filed within one (1) year after the claim or cause of action arose or it is lost forever.
Waiver and Severability of Terms. The failure of DiscoverLink to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of the right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, void or unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
Force Majeure. Nonperformance of DiscoverLink shall be excused to the extent that performance is rendered impossible by strike, fire, acts of God, governmental acts or orders or restrictions, failure of suppliers, satellite, cable, telecommunications or internet failures, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of DiscoverLink.