DISCOVERLINK USE AGREEMENT
(current as of October 11, 2019)
You, or your organization, have purchased through a DiscoverLink, Inc. (“DiscoverLink”) Authorized Reseller, a nontransferable, non-exclusive, limited license to use the DiscoverLink educational, training and testing material, including without limitations, software or LMS, online courses and interactive multimedia training and learning content (“Product”) for your organization. Your use of DiscoverLink Product is expressly conditioned on your acceptance of our terms and conditions of use. By using the DiscoverLink Product, you agree to the following terms and conditions in this DiscoverLink Usage Agreement (the “Agreement”). This Agreement is in effect whether the Product was purchased directly from DiscoverLink or from an Authorized Reseller of the DiscoverLink Product. DiscoverLink reserves the right to update and change the Agreement from time to time without notice, and your continued use of the Product will constitute your acceptance of all revisions to the Agreement. You can review the most current Agreement at any time at https://discoverlink.com/staging/reseller-agreement-ett/. You should check this page regularly.
Subject to your compliance with the Agreement, DiscoverLink grants you a personal, non-exclusive, non-transferable, limited, and revocable license to use the Product.
Authorized Resellers have accepted the appointment, as a non-exclusive reseller of DiscoverLink’s Product. The Authorized Reseller may market, sell, or incorporate for resale DiscoverLink’s Products to you. All Products will reside on DiscoverLink’s servers and access to the Product will be provided to you directly from the Authorized Reseller. All support and maintenance will be agreed upon between you and the Authorized Reseller with DiscoverLink having no direct contact with you except for disputes that arise out of this Agreement.
You hereby agree, during and after your use of the Product to defend, indemnify and hold harmless DiscoverLink, any affiliate of DiscoverLink and their respective officers, directors and employees (collectively, the “DiscoverLink Indemnified Parties”) against any and all losses, costs, obligations, liabilities, settlement payments, fines, penalties, damages, expenses or other charges, (collectively, a “Loss” or “Losses”) that DiscoverLink Indemnified Parties incur, to the extent that the Loss (i) arises out of any breach by you of this Agreement; (ii) arises out of your illegal use of the Product; or (iii) arises out of or relates to any claim that materials or specifications provided by you, or any DiscoverLink Product requested by you, that violates, infringes or misappropriates any U.S. published patent, copyright or trademark of any third party.
EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
You understand that DiscoverLink uses Authorized Resellers to provide the necessary hardware, software, networking, storage, and related technology required to run the Product.
THE PRODUCT AND ALL INFORMATION IN THE PRODUCT ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. DISCOVERLINK DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT IT IS ERROR-FREE, THAT THE RESULTS OBTAINED FROM USING THE PRODUCT WILL BE ACCURATE, RELIABLE, OR SATISFACTORY, OR THAT ANY ERRORS IN THE PRODUCT WILL BE CORRECTED.
DISCOVERLINK DOES NOT WARRANT THAT INTERNET CONNECTIONS AND ACCESS TO THE PRODUCT WILL BE AVAILABLE, RELIABLE, UNINTERRUPTED, TIMELY, SECURE, OR SATISFACTORY. 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. THIS AGREEMENT DOES NO EXCLUDE OR LIMIT ANY WARRANTY OR RIGHT THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED, TO THE EXTENT DISALLOWED, IN RELEVANT JURISDICTIONS.
INTELLECTUAL PROPERTY RIGHTS
All materials and information contained in the Product are the copyrighted 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 Product are service marks of DiscoverLink or its affiliates, or specifically identified third-parties. You may not use any portion of the Product, 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 Product without our prior express written permission. You may not in any case, rent, lease, sublicense, share the Product or access codes, allow third-party access to, or copy, or permit all or any portion of the Product to be copied, onto another user’s computer.
Entire Agreement. The Agreement, as amended from time to time, constitutes the entire Agreement between you and DiscoverLink and governs your use of the Product.
Choice of Law and Forum. 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 the event of any dispute between you and DiscoverLink arising from or relating to this Agreement, upon the written request of either of us, we shall each appoint a person to meet and negotiate in good faith to resolve the dispute. Other than injunctive relief (which may be sought without delay), formal legal proceedings may not be commenced until the earlier of the expiration of thirty (30) days after the initial request for negotiations, or either of the designated persons concludes in good faith and notifies the other person that amicable resolution by further negotiation does not appear likely.
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 Product 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, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and all other provisions of the Agreement remain in full force and effect.
Force Majeure. Nonperformance of either Party, except the payment of money, 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 the non-performing Party.
Notices. You agree that DiscoverLink may provide notices, including those regarding changes to the Agreement, by postings on the DiscoverLink.com website and at https://discoverlink.com/staging/reseller-agreement-ett/. You may communicate with DiscoverLink only by email, which must be acknowledged by an email reply from DiscoverLink.
Assignment. 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. Any attempt by you to do so is void. Instead, you may cancel your access to the Product via your Authorized Reseller.
Miscellaneous. The section headings in the Agreement are for convenience only and have no legal or contractual effect.