WHEREAS, StormWind desires to offer online training to Purchaser via a web-based learning management system (“Campus”) and Purchaser agrees to license access to the Campus; and
NOW THEREFORE, in consideration of the premises and the representations and mutual undertakings hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to the foregoing and as follows:
1. Subject Matter
StormWind is currently offering online training to employees of Purchaser (“Students”) via Campus.
2. Account
An account to Campus shall be licensed pursuant to an executed order form which shall be attached to these Terms and Conditions as a link (“Order Form”). By licensing an account with StormWind, Students gain access to the Campus and are subject to these Terms and Conditions and such Order Form.
3. Modification of Terms
These Terms and Conditions may only be modified by a written instrument which is executed by a duly authorized representative of each party. Legal notices must be sent by certified or registered mail (return receipt requested) or commercial express courier (with tracking capabilities) and shall be deemed to have been duly given when delivered to addresses set forth above. All other notices can be given through e- mail, a posting on the Campus, updates on the StormWind website or any other means by which Purchaser or a Student may obtain notice.
4. Limited License.
StormWind hereby grants each Student a limited, non-exclusive, non-sublicensable and non-transferable worldwide license to access and use Campus including the content and information available in Campus and documentation thereto according to the provisions contained herein.
Each account may only allow its Students that have signed up to access the student Campus. If the applicable Order Form terminates, the applicable Students shall no longer have access to the Campus. The Campus may not be accessed by more than the authorized number of Students purchased under the Order Form. Each Student shall be authorized to access the Campus from any Internet connection.
Purchaser shall be designated to oversee and be responsible for management of the Student accounts.
5. Access to the StormWind Student Campus; Modification of Content.
StormWind strives to provide the Campus to its Students on a continuous basis. To that end, StormWind will take all commercially reasonable efforts to provide uninterrupted access to the Campus to its Students. However, from time to time, Students may be unable to access the Campus due to conditions beyond StormWind’s control. Such conditions include, but are not limited to: force majeure, acts of God, and power outages. Also, from time to time, access may be unavailable due to software issues, server downtime, increased Internet traffic or downtime, programming errors, regular maintenance of the system, and other related reasons. StormWind will provide notifications at least three (3) business days in advance to Purchaser and/or Students related to downtime as a result of StormWind’s actions (Regular Maintenance, Software Issues, Hardware issues). These notices will be given through e-mail, a posting on the Campus, and updates on the StormWind website as prescribed. In response to any unavailability of the Campus to its Students, StormWind will take all commercially reasonable steps to ensure access is restored within a reasonable period of time. The term “commercially reasonable,” as used in these Terms, shall mean reasonable efforts taken in good faith without an unduly or burdensome use or expenditure of time, resources, personnel or money.
StormWind endeavors to provide the highest quality content to its Students. To that end, StormWind reserves the right to change, modify, or discontinue any aspect or feature of the Campus in whole or in part, including, without limitation, the content of Campus. Such changes, modifications, additions or deletions will be effective immediately upon notice thereof, which notice may be made by posting such changes on the Campus.
Students are solely responsible for ensuring that they have sufficient and compatible hardware, software, telecommunications equipment and Internet service necessary for use of the Site.
6. Prohibited Conduct.
Student expressly agrees to refrain from doing, either personally or through an agent, any of the following “Prohibited Conduct”:
- Knowingly transmit, install, upload or otherwise transfer any virus, advertisement, communication, or other item or process to the Campus that in any way affects the use, enjoyment or service of Campus, or adversely affects StormWind’s computers, servers or databases.
- Knowingly permit or provide others with unauthorized access to the Campus using Student login and password or otherwise,.
- Except as otherwise expressly set forth herein, copy, modify, reverse engineer, disassemble, redistribute, republish, alter, create derivative works from, assign, license, transfer or adapt any of the software, content, information, text, graphics, source code or HTML code, or other content available on the Campus.
- Transfer the Campus content to another person; “frame,” “mirror,” “in-line link,” or employ similar navigational technology to the Campus content.
- Knowingly violate or attempt to violate StormWind’s security mechanisms, access any data or server you are not authorized to access or otherwise breach the security of the Campus or corrupt the Campus in any way.
- Knowingly engage in any other conduct which violates the Copyright Act or other laws of the United States.
- Use any device (such as a “web crawler” or other automatic retrieval mechanism) or other means to harvest information about other Students, the Campus or StormWind.
- Use the Campus to intentionally violate a third party’s intellectual property, personality, publicity or confidentiality rights; upload, download, display, publish, perform, create derivative works from, transmit, or otherwise distribute information or content in violation of a third party’s intellectual property rights.
- Knowingly misrepresent a Student’s identity or personal information when accessing the Campus.
- Knowingly post obscene, harassing, defamatory, filthy, violent, pornographic, abusive, threatening, objectionable or illegal material on the Campus or during a Live Class; post a communication that advocates or encourages criminal conduct or conduct that may give rise to civil liability.
- Provide access to an account or transfer account to another Student when the paid Student has completed their courses or if the paid Student is no longer with the paying company/account.
7. LIMITED WARRANTIES.
7.1 Each party represents and warrants that it has the authority required to enter into these Terms and Conditions.
7.2 StormWind warrants that Campus will substantially achieve the functionality and specifications described in its documentation and within Campus.
7.3 STORMWIND PROVIDES NO WARRANTY THAT PURCHASER HARDWARE, SOFTWARE, TELECOMMUNICATIONS EQUIPMENT AND/OR INTERNET SERVICE IS COMPATIBLE OR SUFFICIENT TO ACCESS THE SITE.
8. Third Party Content; Hyperlinks.
Content provided by third parties is for informational purposes only, and StormWind’s use of the content constitutes neither an endorsement nor a recommendation by StormWind of the content and is not liable for any claims related to such content. StormWind assumes no responsibility for third party products or services unless recommended by StormWind or unless such products or services are incorporated in the Campus.
The StormWind Student Campus may contain links and references to other third party websites and materials. StormWind does not assume any responsibility for these websites or materials and provides these links or materials solely for the convenience of Students. StormWind does not endorse or otherwise recommend any of these third party websites, references, or the products, services, or information there offered. StormWind may disable any hyperlink to the Campus.
STORMWIND MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, OF THE ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THE INFORMATION PROVIDED BY THIRD PARTIES. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY INFORMATION FOUND ON A LINK LOCATED ON CAMPUS THAT ALLOWS STUDENTS TO ACCESS INFORMATION FOUND ON ANOTHER SITE. ADDITIONALLY, STORMWIND DOES NOT WARRANT THE EXISTENCE OR FUNCTIONALITY OF ANY WEBSITE WHICH CAN BE ACCESSED THROUGH A LINK LOCATED ON CAMPUS.
9. Limitation on Liability.
Notwithstanding anything to the contrary contained herein, neither Party shall be liable or responsible to the other Party or such other Party’s affiliated Persons for any consequential, incidental, or punitive damages, or for loss of profits or revenues (collectively referred to as “special damages”) incurred by such Party or its affiliated Persons that arise out of or relate to this Agreement, REGARDLESS OF WHETHER ANY SUCH CLAIM ARISES UNDER OR RESULTS FROM CONTRACT, NEGLIGENCE, OR STRICT LIABILITY OF THE PARTY WHOSE LIABILITY IS BEING WAIVED HEREBY. StormWind’s maximum liability to Customer shall be limited to the actual cost paid by the Customer. Except as expressly provided in the Agreement, neither Customer nor StormWind makes any guarantees or warranties of any kind, expressed or implied. StormWind specifically disclaims all implied warranties of any kind or nature, including any implied warranty of merchantability and/or any implied warranty of fitness for a particular purpose.
10. Copyrights, Trademarks and Other Proprietary Rights.
StormWind or its third party content providers shall retain all worldwide rights in the intellectual property in and on the Campus, including, but not limited to, trademarks, service marks, trade dress, inventions, ideas, trade secrets, the source code, the HTML code, the “look and feel” of the Campus, its color combinations, layout, and all other graphical elements, and the copyrights in and to its original content.
Notwithstanding the foregoing, Purchaser owns and shall retain all rights in all intellectual property and information provided to StormWind in connection with these Terms and Conditions. Except as expressly stated on the Campus or in these Terms, nothing that appears in the Campus may be copied, reproduced, modified, distributed, transmitted, republished, displayed or performed for commercial use without the prior written consent of StormWind, except as provided in these Terms and Conditions.
11. Security; Authorized Use.
Students are prohibited from knowingly violating or attempting to violate the security of the Campus. StormWind has the right but not the obligation to investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators. StormWind may suspend Purchaser’s access, with notification to Purchaser, while it conducts an investigation. Students are required to enter a Student login and password to access the Campus.
A Student may not use the account, Student login or password of someone else at any time. Purchaser agrees to notify StormWind promptly of any unauthorized use or loss of an account, Student login, and/or password. Purchaser also agrees to notify StormWind promptly of known or suspected unauthorized use of the Campus and/or the Campus content. StormWind will not be liable for any loss that Purchaser incurs as a result of someone else using a Student name and password with or without Purchaser’s knowledge, except where Purchaser has provided StormWind with notice of such unauthorized access or use.
12. Term and Termination.
The term of these Terms and Conditions shall be the term set forth in the attached Order Form. Either party may terminate these Terms and Conditions upon written notice if the other party is in material breach of these Terms and Conditions and the other party has failed to cure such breach after thirty (30) days’ notice to cure such breach.
13. Confidentiality.
StormWind values Purchaser’s trust. In order to honor that trust, all of StormWind’s employees are required to adhere to ethical standards in gathering, using, and safeguarding any information Purchaser or Students provide (“Purchaser Information”). StormWind shall maintain in confidence Purchaser Information and shall not disclose or otherwise make available Purchaser Information to any third party; provided, however, that it may disclose Purchaser Information to StormWind’s officers, employees, consultants and legal advisors who need access to such Purchaser Information and agree to maintain the confidentiality of such Purchaser Information.
14. Fees and Payment.
Exhibit A shall set forth the fees payable by Purchaser under this Agreement and timing for invoicing. Each properly and accurately prepared invoice shall be payable within 30 days after its receipt by Purchaser. Payments from Purchaser can be provided via Check, Credit Card, or ACH transaction.
15. Governing Law.
The substantive laws of the State of Arizona shall govern these Terms and Conditions.
16. Miscellaneous.
These Terms and Conditions constitute the entire agreement between StormWind and Purchaser regarding the subject matter hereof. Any previous agreement, whether oral or written, between StormWind and Purchaser dealing with the subject matter hereof is superseded. If any portion of these Terms and Conditions is determined to be unenforceable for any reason, such portion will be deemed severed and the remaining terms and conditions shall continue in full force and effect. StormWind operates Campus from the United States and makes no representation that Campus complies with any foreign or international laws. Neither party may assign its rights or delegate its duties under these Terms and Conditions without the other party’s prior written consent. In performing its obligations under these Terms and Conditions, StormWind and its personnel shall comply, and shall cause Campus to be operated in compliance, with the requirements of all applicable laws, ordinances, regulations, codes and executive orders. The parties agree that no third party is an intended beneficiary of these Terms and Conditions. The following provisions shall survive termination of these Terms and Conditions 7, 8, 13, 15 and those portions of this Section 16 which by their nature should survive termination.
