End User License Agreement Last Updated: Dec 19, 2022.
NeonTrain Inc. provides its clients certain online goods and Service including, without limitation, access to the learning management system known as BRIGHTSPACE™. BRIGHTSPACE™ is a cloud-based collection of learning tools that allows individuals to experience interactive online learning. We refer to BRIGHTSPACE™ and our other service offerings as the “Service”. The Service are hosted by NeonTrain, D2L Corporation (“D2L”) and other third- party service providers. We refer to NeonTrain as we, us and our.
READ THIS LICENSE CAREFULLY BEFORE ACCESSING THE SERVICE. BY ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE YOU MUST PROMPTLY DELETE AND DESTROY ALL COPIES OF THE PRODUCT AS THAT TERM IS DEFINED BELOW. THE FORM OF THIS LICENSE MAY CHANGE FROM TIME TO TIME. BY ACCEPTING THE TERMS OF THIS LICENSE, YOU ACKNOWLEDGE THAT THE CHANGES MADE FROM TIME TO TIME WILL BE BINDING ON YOU. ANY REVISIONS TO THE FORM OF LICENSE WILL BE POSTED ON OUR WEBSITE NEONTRAIN.COM/PRIVACY. YOU AGREE TO BE BOUND BY THE MOST CURRENT VERSION OF THE LICENSE POSTED ON THAT SITE.
License. We own or license certain technology and materials including without limitation the computer software on which it runs (collectively, the “Product”) which allow us to provide the Service. The Product are protected by Canadian and foreign intellectual property laws. As between you and us, we retain full and complete title to the Product and all updates and subsequent copies of them (including without limitation copies made in violation of the terms of this Agreement), regardless of the medium or form in which the copies may exist.
Rights and Restrictions on Use. In consideration of your agreeing to be bound by the terms and conditions set out in this Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), we grant you a limited, non-exclusive, personal, non-commercial, non-assignable, non-transferrable (except as set forth herein), revocable license and right to use the Service for your own purposes (and not for the provision of Service to others on a commercial basis), and to install and use one (1) copy of the Product on a single compatible device (“Device”) that you own or control and which has not been modified (except in accordance with the manufacturer’s recommendations), and as permitted by the usage rules set forth in the applicable third party digital storefront terms of service through which the Product is made available to you. “Use” means load, store or display the Product in the form provided to you by us. Use rights must be obtained for each person or entity using the Service. You are granted the right to back-up or archive the Product in accordance with the standard operating procedures applicable to your Device. The Product includes confidential information which you agree to keep strictly confidential and neither disclose nor use for any purpose other than the limited use of the Product in accordance with this License. You will not: (a) use, copy, reproduce or transfer the Product other than as set out above or, without limiting the generality of the foregoing, adapt, translate or modify the Product in any way whatsoever, nor will you create derivative works based on the Product; (b) remove or alter ownership and copyright notices embedded in or on the Product; (c) use, make available, copy, or transfer the Product except as authorized and permitted by the laws and regulations of the jurisdiction in which you are using the Product, the United States and Canada; (d) permit any third party to violate the terms and conditions of this Agreement; (e) sublicense, rent, loan, or otherwise transfer (except as explicitly provided in this agreement) the Product to any third party. You represent and warrant that in using the Service: (i) you will not violate the rights of any third party; (ii) you will not impersonate any person; (iii) you will not upload viruses or engage in other activities that might cause damage to the site(s) maintained by us or otherwise disrupt our operations by disrupting our site servers or otherwise; or (iv) you will not engage in or promote participation in any illegal activity; (v) you are at least the age of majority in your jurisdiction; or at have the consent of your parent or legal guardian to agree to this EULA. .
You must comply with all of our requests regarding your use of the Product and Service. We may, in our sole discretion, change any part of this EULA, in whole or in part, at any time. If we exercise this right, the “Last Update” notice at the top of this document shall be amended to reflect the last date of such changes. Changes will be effective as of the date the terms were changed. It is your responsibility to check the EULA each time you access the Product or Service to determine whether any changes have been made, including by checking the date of the “Last Update” at the top of this EULA. If any change to this EULA is not acceptable to you, you must discontinue your use of the Product and Service, and delete all copies of the Product immediately. Your continued use of the Product and Service after any such changes are posted will constitute acceptance of those changes.
We or D2L may, at any time and without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of the Product or Service, including without limitation changing the availability of, restricting access to, or imposing limits on any or all features or Service on, or links to, the Product or Service. We reserve the right, in our sole discretion, to facilitate the correction of any errors or omissions in any portion of the Product or Service at any time without notice, but confirm that we have no duty to do so.
Credentials, Account. We may provide you with credentials (e.g, ID and password) (the “Credentials”) to use with the Product and Service. This EULA applies whenever you use the Credentials. When you use the Credentials to gain access to any application or web site other than the Product or Service, the terms and conditions (including but not limited to any end user license agreements) for that application or web site will apply in addition to this EULA to your use of that application or web site. You are solely responsible for actions and communications undertaken or transmitted in the course of your use of the Product or Service.
Your Credentials will correspond to an account (“Account”) granted to you by NeonTrain. Only you may use your Account. You must keep your Account and Credentials confidential and not authorize any third party to access or use the Service on your behalf, without our prior consent. You must contact us immediately if you suspect misuse of your Account or any security breach in the Product or Service.
We may cancel or suspend your Account and your access to the Product or Service at any time without notice and for any reason. Reasons for cancellation may include but are not limited to the fact that the Product or Service are no longer provided in your region, or that you have breached this EULA or failed to pay fees that you owe to us. If your Account is canceled, your right to use the Product or Service shall be terminated immediately. On cancellation of your Credentials, your right to use the Product or Service is immediately terminated. Cancellation of the Product or Service or Credentials does not alter your obligation to pay all charges made to your billing account, if applicable.
Certain links in the Product or Service may take you to other web sites and Data that are not owned or operated by D2L or by us. These links are provided only as a convenience. We are not responsible for the content (including but not limited to content that may be offensive, indecent, objectionable, or that contains errors or inaccuracies) of any such linked web sites or data, and make no representation or warranty regarding, and nor do we endorse, such linked web sites, data, the information or other content appearing thereon or any of the products or service available on or through such web sites or data.
Your use of the Product and of the Service is at your sole risk. We shall have no liability to you for such third party web sites, data, information or other content appearing thereon or any of the products or service available on or through such web sites or data that may be found to be offensive, indecent, objectionable, erroneous or inaccurate. Access or use of a third party website or another’s data is at your own risk, and it is your responsibility to take all protective measures to guard against viruses and other destructive elements.
Any feedback you provide for any purpose any comments, suggestions, or other feedback you submit regarding your use of the Product or Service are provided on a non-confidential basis and may be incorporated in the Product or the Service. You agree to not assert any ownership right of any kind in such communications (including without limitation copyright, trade-mark, patent, trade secret, unfair competition, moral rights, or implied contract) and you hereby waive such moral rights.
We are not obliged to monitor, screen, police or edit your use of the Product or Service, including postings you or others may make to the Product or Service, although we may choose to do so in our sole discretion. We will respond as we consider appropriate, in our sole discretion, if we become aware of any inappropriate uses of the Product or Service, including without limitation use that constitute copyright infringement.
Users of the Product or Service may be permitted to submit or post discussions, questions, images, comments, reviews or other information (collectively, the “User Content”) to the Product or Service. In submitting or posting any User Content, you agree: User Content you share in public areas of the Product or Service or in shared areas available to others may use that User Content and you grant them free, non-exclusive permission to use, reproduce, distribute, display, transmit, and communicate to the public the User Content solely in connection with the Product or Service. If you do not want others to have those rights, do not use the Product or Service to share your User Content.
You grant us and D2L and its agents the right, to use, process, transfer, modify, adapt, reproduce, distribute, delete and display content posted on the Product or Service. You shall not share any User Content in a way that infringes the rights of others. You represent and warrant that you have all the rights necessary for you to grant the rights granted, and that the use of the User Content will not violate any law. We will not pay you for your User Content and may refuse to publish your User Content for any or no reason. We may remove your User Content at any time in our sole discretion.
“Content” includes messages, information, data, text, software, image, User Content and other content that make up the Product and are part of the Service. You are responsible for backing up your User Content and data that you create or store using the Product or Service. If there is a Product or Service outage, your Content may be lost. If your use of Product or Service is suspended or canceled, we or D2L may permanently delete your Content. We have no obligation to return your Content to you after your use of the Product or Service has been suspended or canceled. If your Content is stored with an expiration date, we may delete your Content as of that date. Content that is deleted may be irretrievable.
Disclaimer of Warranties. We make reasonable efforts to ensure that the Content is accurate at the time it is posted; however, we make no representation or warranty regarding the Product, Service or Content, including without limitation any representation, warranty or condition regarding their accuracy, reliability, currency, or completeness. We make no representation or warranty that the Product, Service or Content is appropriate or available for use at any locations outside Canada.
You acknowledge and agree that the Product and the Service (including without limitation the Content) is provided on an “AS IS” basis and that any use of or reliance on the Product, Service or Content shall be at your sole risk. WE DO NOT MAKE ANY, AND EXPRESSLY DISCLAIM, ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO THE PRODUCT OR SERVICE (INCLUDING THE CONTENT, THE USER CONTENT AND THE DATA). FOR GREATER CERTAINTY, D2L DOES NOT GUARANTEE OR WARRANT THAT THE PRODUCT OR SERVICE WILL (i) MEET YOUR REQUIREMENTS, (ii) BE COMPATIBLE WITH YOUR DEVICE OR ANY RELATED EQUIPMENT, (iii) BE ACCURATE, RELIABLE, AUTHENTIC, CURRENT OR COMPLETE, (iv) CONTINUE TO OPERATE, (v) OPERATE WITHOUT INTERRUPTIONS, OR (vi) BE ERROR-FREE THROUGH YOUR USE OF THE PRODUCT OR SERVICE. IN ADDITION WE DO NOT GUARANTEE OR WARRANT THAT ANY INFORMATION OR DATA YOU MAY STORE OR ACCESS THROUGH THE PRODUCT OR SERVICE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION OR LOSS.
Limitation of Liability. YOU AGREE THAT IN NO EVENT WILL WE OR D2L OR OUR RESPECTIVE AFFILIATES OR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES (COLLECTIVELY, THE “REPRESENTATIVES”) HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH THE PRODUCT OR SERVICE FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT (INCLUDING WITHOUT LIMITATION FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE BASIS, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOSS OF INFORMATION OR PROGRAMS OR DATA, LOSS OF PROFIT, LOSS OF SAVINGS, LOSS OF REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC LOSS), ARISING FROM OR IN CONNECTION WITH OR RELATING TO THE USE OF OR ACCESS TO, OR ANY INCONVENIENCE, DELAY OR LOSS OF USE OF OR ACCESS TO, THE PRODUCT, SERVICE, THE CONTENT, OR ANY CONTENT OF ANY 3RD PARTY WEB SITE, OR FAILURE OF SUCH WEB SITES (INCLUDING WITHOUT LIMITATION ANY DAMAGES SUFFERED AS A RESULT OF OMISSIONS OR INACCURACIES IN SUCH WEB SITES OR CONTENT, OR THE TRANSMISSION OF CONFIDENTIAL OR SENSITIVE INFORMATION TO OR FROM SUCH WEB SITES), EVEN IF WE OR D2L OR ANY REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF SUCH DAMAGE OR LOSS WAS FORESEEABLE.TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL LIABILITIES TO YOU, THROUGH ANY ACT OR OMISSION AS IT RELATES TO THE UNLAWFUL OR UNAUTHORIZED USE OF THE PRODUCT OR SERVICE. YOU ARE SOLELY RESPONSIBLE FOR ALL DATA MADE AVAILABLE TO OR BY THE PRODUCT OR SERVICE OR US.
Allocation of Risk. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THE DISCLAIMERS CONTAINED IN THIS AGREEMENT. YOU AGREE THAT THE ABOVE WARRANTIES AND LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.
By using the Product or Service, you agree to indemnify, defend, and hold harmless (or if prohibited by the laws of your jurisdiction, to the fullest extent of the law, you are liable to), us and D2L, and our respective directors, officers, employees, affiliates, subsidiaries, agents, contractors, licensors and licensees with respect to any damages, losses and costs, including lawyers’ fees and costs on a solicitor and client basis, related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this EULA, including your submission of objectionable data or data that violates third party rights or applicable laws, (2) any data you submit using the Product or Service, (3) any breach of privacy claims made by you or for which you are responsible, and (4) your use of, misuse of or inability to use the Product or Service.
We reserve the right to terminate your license to the Product or Service at any time, for any reason without notice to you; however, if feasible, we will use commercially reasonable efforts to provide you with any notice of termination. Notwithstanding the foregoing, if you breach any provision of this EULA, then you may no longer use the Product or Service. Your rights under this EULA will terminate automatically if you fail to comply with any term of this EULA. In case of such termination, you must cease your use of the Product or Service, and we may revoke your access to Service or the Product without refund of any fees and without further notice to you. We, in our discretion, shall determine whether this EULA has been violated.
EXPORT RESTRICTIONS. THE PRODUCT AND/OR SERVICE MAY BE SUBJECT TO CANADIAN, U.S. OR INTERNATIONAL EXPORT, IMPORT AND /OR USE LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL APPLICABLE CANADIAN, U.S. OR INTERNATIONAL EXPORT, IMPORT AND/OR USE LAWS AND REGULATIONS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE. You represent that you are not a citizen of an embargoed country or a prohibited end user under applicable U.S. or local export and anti-terrorism laws, regulations and lists. You agree not to export, re-export, divert, transfer or disclose any portion of the Product or Service or Data or Service or site or any related technical information or materials, directly or indirectly, in violation of any applicable export or import law or regulation.
all matters relating to the access to, or use of, the Product or Service shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to its conflict of laws principles, and that you will comply with all such applicable laws.
Dispute Resolution and Arbitration; Class Action and Jury Trial Waivers. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS.
Arbitration. If we are not able to amicably resolve any dispute, claim, action or proceeding between us arising out of or concerning the Product or Service, this EULA, any transaction through the Product or Service or any related matters, whether in contract, tort, or otherwise at law or in equity (each, a “Dispute”), then such Dispute shall be resolved only by final and binding arbitration conducted by a single neutral arbitrator and administered by the ADR Chambers (“ADR”) in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the ADR, excluding any rules or procedures governing or permitting class actions, or a similar arbitration service selected by us, in a location mutually agreed upon by us. The prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The arbitrator’s award shall be final, and judgment may be enforced by any court having jurisdiction. The Dispute, including the scope and enforceability of this arbitration provision shall be determined by the arbitrator. This arbitration provision shall survive the termination of this EULA for any reason.
Class Action Waiver. Any arbitration under this EULA will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. WE AGREE THAT WE MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Waiver of Jury Trial. Each of us hereby knowingly and voluntarily waives our right to trial by jury with respect to any Dispute arising out of or in connection with the Product or Service, this EULA, any transaction through the Product or Service or any related matters, or by our conduct or relationship.
General. This EULA constitute the entire agreement with respect to the subject matter hereof, and supersedes all communications, representations or agreements, either oral or written, with respect to this subject matter. If for any reason a court of competent jurisdiction finds any provision of this EULA or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this EULA, and the remainder of this EULA shall continue in full force and effect. No waiver of or consent to depart from the requirements of any provision of this EULA will be binding unless it is in writing and signed by us. You and NeonTrain are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by this EULA.
The provisions of this EULA will enure to the benefit of and be binding upon the parties and their respective successors and assigns, and, if you are contracting as an individual, your heirs, executors, administrators, and personal representatives. Except as provided in this EULA, none of its provisions are for the benefit of, or enforceable by, any third party. No third party shall have the right to (a) rely on the products or Service or (b) seek to impose liability on D2L or on us as a result of the Product or Service. You may not assign this EULA or your rights and obligations under this EULA without our express written consent, which may be withheld in our sole discretion. We and our service providers may assign this EULA and their respective rights and obligations under this EULA without your consent.
Language. The parties have required that this agreement and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y attachent soient rédigés en langue anglaise.
Contact Information. Any questions or complaints with respect to the Product or Service should be directed to:
1697 Brunswick Street, Unit 2
Halifax, Nova Scotia, B3J 2G3, Canada