PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR WEBSITE, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS. BY ACCESSING OR USING OUR WEBSITE, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT AND MEET THE QUALIFICATIONS OUTLINED IN SECTION 4.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.
Unless You have entered into a separate written agreement with iN2L regarding the Site, this Agreement is the complete and exclusive agreement between You and iN2L regarding Your access to and use of the iN2L Site.
1. DEFINITIONS. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States. The “iN2L System” refers to the iN2L Software, iN2L Content, iN2L Hardware, and iN2L Services.
2. TERM. This Agreement is entered into as of the date You first access or use the Site (the “Effective Date”) and will continue until terminated as set forth herein.
3. MODIFICATIONS. This Agreement may be amended at any time by iN2L from time to time without specific notice to You. The latest Agreement will be made available when You access the Site, and You should review this Agreement prior to accessing or using the iN2L System. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED ACCESS AND USE OF THE SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFIED AGREEMENT.
4. ELIGIBILITY. The Site is intended for use by individuals 18 years of age and older. If You are a parent, grandparent, or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then You may allow Your child to access the Site only under Your direct supervision; You agree that You will be solely responsible for all access to and use of the Site.
5.1 Users. Some sections of the Site may require You to establish a user account (“User Account”). Approval of Your request to establish a User Account will be at the sole discretion of iN2L. Each username and password for Your Account (“Account ID”) is personal in nature and may be used only by You.
5.2 Administrators. Purchasers of the iN2L System may establish an administrator account on the Site (“Administrator Account”). Administrator Accounts may authorize designated Users to access and use the Site on behalf of the administrator through the Administrative Account by creating a separate “Profile” and User Account for each such User. You and each such User, as applicable, are considered a “User” of the Administrative Account. Before posting any Profiles of Users associated with an Administrator Account, You are responsible for obtaining any and all consents required for sharing of their Registration Information.
5.3 Registration Information. In connection with establishing a User Account or Administrator Account, You will be asked to submit certain information about Yourself (“Registration Information”) and, as applicable, Your association with the purchaser of the iN2L System. You agree that: (a) all Registration Information You provide will be accurate, complete, and current; (b) You will maintain and promptly update all Registration Information to keep it accurate, complete, and current; and (c) You will not provide any Registration Information belonging to another person with the intent to impersonate that person. As applicable, by providing Registration Information, You authorize iN2L to disclose such information to the purchaser of the iN2L System.
5.4 Responsibilities. You are solely responsible for all access to and use of Your User Account and, where applicable, Your Administrative Account (whether authorized or unauthorized), including all Content and Services accessed through the Account. iN2L deems any actions taken through the Account to have been authorized by You. You will ensure the security and confidentiality of Your Account ID and will notify iN2L immediately if Your Account ID is lost, stolen, or otherwise compromised. You acknowledge that You are fully responsible for (1) all costs, fees, liabilities or damages incurred through the use of your Account ID, and (2) all material transferred, stored, modified, or shared through the use of your Account ID.
6. ACCESS to the Site. You may not take any action to interfere with the Site or any other party’s use of the Site. In addition, we expect users of the Sites to respect the rights and dignity of others. The Site may provide links to websites, social media pages, mobile applications or other services operated by other third-party providers (“Third-Party Sites”). If you click these links, you will leave the Site. You do so at your own risk. We do not make any warranty or representation regarding, endorse, or otherwise sponsor any Third-Party Site or its content. Links do not imply that we are legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links; or that any Third-Party Site is authorized to use any of our trademarks, logos or copyright symbols. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any iN2L Site; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any iN2L Site; or (c) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Site.
8. PURCHASES and PAYMENTS. Where applicable, the Site may allow you to pay your invoice directly on it. When utilizing this option, you authorize iN2L (or a company chosen to act on behalf of iN2L) to charge the payment method provided in connection with any transaction made through Your Account and agree to honor all charges incurred in connection with any such transaction.
10. TERMINATION. This Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Agreement. Upon termination or expiration of this Agreement for any reason: (1) all rights and subscriptions granted to You under this Agreement will terminate; (2) You will immediately cease all use of and access to the Site (including, without limitation, all iN2L Content You obtained prior to termination); and (3) iN2L may, in its sole discretion, delete Your User Account and, where applicable, Your Administrator Account and any of Your Content held by iN2L at any time. Sections 1 (Definitions); 8 (Purchases and Payments); 10 (Termination); 12 (Ownership); 13 (Representations and Warranties); 14 (No Warranties; Disclaimers); 15 (Indemnity); 16 (Limitation on Liability); 17 (Data Privacy); 18 (Feedback); 20 (Disputes and Arbitration); 21 (Notices); and 23 (Additional Terms) will survive any expiration or termination of this Agreement.
11. SUSPENSION. Without limiting iN2L’s right to terminate this Agreement, iN2L may also suspend Your access to Your User Account and, where applicable Your Administrator Account without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law, or upon any other conduct deemed by iN2L to be inappropriate or detrimental to the Site, the iN2L System, iN2L, or any other iN2L User or customer.
All names, logos, text, designs, graphics, trade dress, characters, interfaces, code, software, images, sounds, videos, photographs and other content appearing in or on the Site (“iN2L Content”) are protected intellectual property of, or used with permission or under license by, iN2L. Such iN2L Content may be protected by copyright, trademark, patent or other proprietary rights and laws. This includes the entire iN2L Content of the Site, copyrighted and protected as a collective work. All intellectual property rights associated with the Site, and related goodwill, are proprietary to us or our licensors. You do not acquire any right, title or interest in any iN2L Content by accessing or using the Site. Any rights not expressly granted herein are reserved. Except as set forth below, the use of any iN2L Content available on a Site is strictly prohibited.
We grant you a limited license to access and use the Site and the iN2L Content for personal, informational, and payment purposes. No iN2L Content from the Site may be copied, reproduced, republished, performed, displayed, downloaded, posted, transmitted, or distributed in any way without written permission of iN2L, except that you may download or print one copy of specific iN2L Content or software made available for your downloading or printing for your personal, non-commercial home use, subject to your compliance with this Agreement and retain the same solely for as long as you continue to be permitted to access the Site. To use iN2L Content under such an exception, you must (1) keep any copyright, trademark, or other proprietary notices intact, (2) use such iN2L Content pursuant to any licenses associated with such iN2L Content, (3) not copy or post such iN2L Content on any networked computer or broadcast it in any media, (4) make no modifications to any such iN2L Content, and (5) make no additional representations or warranties relating to such iN2L Content. Except as otherwise expressly authorized herein or in writing by us, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of the Site or the iN2L Content.
13. REPRESENTATIONS AND WARRANTIES.
13.1 Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.
13.2 Compliance With Laws. You acknowledge that Site is for normal personal use. iN2L is not responsible for enabling Your compliance with any such law, rule, or regulation or for Your failure to comply. You represent and warrant to iN2L that Your use of and access to the Site will comply with all applicable laws, rules, and regulations and will not cause iN2L itself to violate any applicable laws, rules, and regulations.
14. NO WARRANTIES; DISCLAIMER. EXCEPT AS PROVIDED HEREIN, THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE.” IN2L AND ITS THIRD-PARTY PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, AVAILABILITY, UPTIME, OR CURRENCY OF THE SITE AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE SOFTWARE, CONTENT, OR SERVICES PROVIDED THROUGH THE SITE. IN2L AND ITS THIRD-PARTY PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SITE AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IN2L, ITS EMPLOYEES, OR THIRD-PARTY PROVIDERS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT. YOU EXPRESSLY AGREE THAT YOUR ACCESS AND USE OF THE SITE IS AT YOUR OWN RISK.
15. INDEMNITY. You hereby agree to indemnify, defend, and hold harmless iN2L and its third-party providers, officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Site; (2) Your Content or other data, information, or Content that You access or provide through the Site; (3) Your violation of any third-party right, including any infringement or misappropriation of any third-party’s proprietary or otherwise protected content or privacy right; (4) Your activities in connection with the Site, and (5) Your breach of any representation, warranty, or other provision of this Agreement. iN2L will provide You with notice of any such claim or allegation, and iN2L will have the right to participate in the defense of any such claim at its expense.
16. LIMITATION OF LIABILITY. IN2L, AND ITS THIRD-PARTY PROVIDERS, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS OR USE OF THE SITE, EVEN IF IN2L HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN2L’S, AND ITS THIRD-PARTY PROVIDERS’, TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND YOUR ACCESS TO THE SITE AS PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100 OR, IN THE CASE OF ANY PURCHASES YOU MAKE THROUGH THE SITE, THE AMOUNTS PAID BY YOU TO IN2L FOR THOSE PURCHASES IN THE 6 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY LIABILITY. YOU AGREE THAT IN2L WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, IN2L’S, AND ITS THIRD-PARTY PROVIDERS’, LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. FEEDBACK. If You provide iN2L any feedback or suggestions regarding the Site (“Feedback”), You hereby assign to iN2L all rights in the Feedback and agree that iN2L shall have the right to use such Feedback in any lawful manner it deems appropriate without a duty of accounting to You. PLEASE DO NOT POST OR SEND US ANY CONTENT, IDEAS, SUGGESTIONS, OR OTHER CONTENT THAT YOU WISH TO KEEP PRIVATE OR PROPRIETARY OR FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION.
19. CLAIMS OF INFRINGEMENT. iN2L respects Your copyrights and other intellectual property rights and those of third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Site without Your authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
It’s Never 2 Late, LLC
Attention: iN2L Copyright Infringement Agent
5889 Greenwood Plaza Blvd.
Greenwood Village, CO 80111
Please provide the following information to iN2L’s Copyright Infringement Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (5) Your electronic or physical signature.
22. DISPUTES AND ARBITRATION. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Confidentiality. The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
Governing Law and Rules. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado, exclusive of conflict or choice of law rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits.
Prevailing Party. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
Seeking Arbitration. If You elect to seek arbitration or file a small claim court action, you must first send to us, by certified mail, a written notice of your claim (“Notice”) as outlined in Section 21 (NOTICES). If we initiate arbitration, we will send a written Notice to You as outlined in Section 21 (NOTICES). A Notice, whether sent by You or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If You and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or we may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com. If You are required to pay a filing fee, after we receive Notice that You have commenced arbitration, we will promptly reimburse you for Your payment of the filing fee, unless your claim is for greater than US$10,000 or the arbitrator determines the claims are frivolous, in which event You will be responsible for filing fees.
Hearing. If Your claim is for US$10,000 or less, we agree that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS Rules. If Your claim exceeds US$10,000, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.
No Class Actions. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Injunctive Relief. Notwithstanding the foregoing, You and iN2L both agree that You or iN2L may bring suit in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective and the remainder of the Agreement shall remain effective. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
21. NOTICES. Unless otherwise specified in this Agreement, You must provide any notices to iN2L required or allowed under this Agreement by postal mail to the address for iN2L listed above. iN2L may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to iN2L in connection with Your Account, provided that in the case of any notice applicable both to You and other Users of the Site, iN2L may instead provide such notice by posting on the Site. Notices provided to iN2L will be deemed given when actually received by iN2L. Notice provided to You will be deemed given 24 hours after posting to the Site or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
22. NEW JERSEY RESIDENTS. If You reside in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) Section 16 (NO WARRANTIES; DISCLAIMER); (b) Section 18 (LIMITATION ON LIABILITY); (c) Section 17 (INDEMNITY); and (d) Section 24 (DISPUTES AND ARBITRATION) (solely to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law). According to N.J.S.A. 56:12-16, you may have additional rights if you are a New Jersey resident and other provisions of this Agreement are found to violate an established legal right.
23. ADDITIONAL TERMS. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Site, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Site. All waivers by iN2L under this Agreement must be in writing or later acknowledged by iN2L in writing. Any waiver or failure by iN2L to enforce any provision of this Agreement on one occasion will not be deemed a waiver by iN2L of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original, and the remaining provisions will remain in full force. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of iN2L. Any assignment in violation of the foregoing will be null and void. iN2L may assign this Agreement to any party that assumes iN2L’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other, or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. iN2L may reference You as a User of the iN2L System and use Your name and logo, as applicable, in listings of Users of the iN2L System appearing on iN2L’s website and for other marketing and promotional purposes relating to the iN2L System.