Noria has developed and offers an Internet-based learning management system (“Noria LMS”) which provides its subscribers (“Authorized Users”, as further defined below) with access to certain online courses (the “Courses”) and Noria-proprietary web-based resources, applications, services and knowledge content (collectively, “Noria LMS Services”). You, the purchasing agent of a user (the “Subscriber”) desire to obtain subscription-based access to the Noria LMS for you and your user(s), as Authorized Users, for the purposes of retrieving and viewing the Courses and Noria LMS Services as enabled by the Noria LMS. Noria is willing to make access to the Noria LMS available to you and your user(s) subject to the terms and conditions set forth herein and your acknowledgment and agreement to the disclaimers and limitations of liability set forth herein. Therefore, as a prerequisite and condition of your access and use of the Noria LMS, the parties agree as follows with the intent to be legally bound:AGREEMENT
- uploading, posting, transmitting, sharing, storing or otherwise making available any content deemed to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, bullying, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
- harvesting or collecting e-mail addresses or other contact information of other users from the Noria LMS by electronic or other means for any purposes including without limitation to send unsolicited emails or other unsolicited communications;
- using the Noria LMS Services or the Noria LMS in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Noria LMS, including but not limited to generation of message activity with the Noria LMS or any Noria LMS Service of such speed or volume that may lead to malfunctions or degradation of performance of the Noria LMS and/or Noria LMS Services;
- using automated methods to collect information from or otherwise interact with users through the Noria LMS Services or the Noria LMS;
- using the Noria LMS Services or the Noria LMS to collect, store, publish, post, sell, transmit or disclose personal data about other users of the Noria LMS Services or the Noria LMS;
- registering for a User Identity on behalf of an individual other than yourself, or registering for a User Identity on behalf of any group or entity, unless duly and expressly authorized by such other individual, group or entity;
- impersonating any person or entity, or falsely stating or otherwise misrepresenting yourself, your age or your affiliation with any person or entity;
- uploading, posting, transmitting, sharing or otherwise making available any unsolicited or unauthorized advertising, offers, surveys, contests, chain letters, solicitations, promotional materials, “junk mail,” “spam,” or any other form of solicitation;
- uploading, posting, transmitting, sharing, storing or otherwise making publicly available on the Noria LMS any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- soliciting personally identifying information for commercial or unlawful purposes or soliciting passwords;
- using the Noria LMS Services or the Noria LMS to offer, sell, broker, purchase or seek any unethical, profane, obscene, indecent, unlawful, terroristic, violent or hateful services;
- uploading, posting, transmitting, sharing or otherwise making available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- using the Noria LMS Services or the Noria LMS to bully, intimidate, harass, threaten, defame, abuse, assault, stalk, or otherwise violate the rights of another person or entity, including without limitation rights of privacy or publicity;
- uploading, posting, transmitting, sharing, storing or otherwise making available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- using or attempting to use another’s User Identity, account, service or system without authorization from Noria, creating a false User Identity on the Noria LMS or otherwise manipulating Noria LMS identifiers in order to deceive others or disguise the origin of any content transmitted to or via the Noria LMS or Noria LMS Services;
- uploading, posting, transmitting, sharing, storing or otherwise making available content that, in the sole judgment of Noria, is false, misleading, objectionable or which restricts or inhibits any other person from using or enjoying the Noria LMS, or which may expose Noria or any Authorized Users to any harm or liability of any type; and
- accessing, tampering with or using areas of the Noria LMS, Noria LMS Services or Noria’s computer systems that exceed the scope of Subscriber’s or any individual Authorized User’s authorization.
Authorized User-Posted Noria LMS Content.
- infringes on the copyright or any other rights of any person or entity;
- reveals trade secrets or any information which you have agreed, expressly or impliedly, to keep confidential;
- includes sexually explicit images, depictions, or content;
- is obscene, indecent, defamatory, abusive, or otherwise unlawful;
- contains a virus or any other potentially damaging content;
- constitutes bullying, harassment or stalking;
- constitutes invasion of privacy, or misappropriation of statutory or common law rights to publicity or personality; or
- constitutes a violation of your school’s honor code, if applicable. Additionally, even if such content is legal, you agree that none of your User Content will contain information or content that:
- constitutes, contains, or encourages “make-money fast” type messages, “chain letters” or “pyramid schemes” of any type;
- contains false or misleading information;
- is purportedly sent from a person other than yourself (e.g., impersonation of another person or user); or
- with respect to Noria LMS Services or Noria LMS functionality that constitute mechanisms for real time dialogue between Users, disrupts the normal flow of dialogue, or posts comments that are not related to the topic being discussed.
License to User Content.
When you post User Content to the Noria LMS, you authorize and direct Noria to make such copies thereof as Noria deems necessary in order to facilitate the posting and storage of the User Content on the Noria LMS. By posting User Content to any part of the Noria LMS, or by sending any other information or file to Noria, including without limitation any ideas, suggestions, or concepts, you automatically grant to Noria a world-wide, royalty-free, fully paid, irrevocable, perpetual, non-exclusive, transferable, right and license (with the right to sublicense) to use, reproduce, copy, adapt, publicly perform, publicly display, publish, reformat, process, translate, excerpt (in whole or in part), edit, translate, distribute and otherwise exploit such User Content and other Authorized User provided material, including, but not limited to, all rights in copyright to such material and all elements thereof alone or as part of other works, throughout the universe, in perpetuity, in any form, media, or technology, whether now known or hereafter devised, and to sublicense such rights through multiple tiers of sublicenses, all without any obligation to you or any third parties, whether by way of compensation, attribution or otherwise for any purpose, commercial, advertising, or otherwise. Such right and license shall include without limitation Noria’s use of User Content or other Authorized User provided material on or in connection with the Noria LMS or the promotion thereof, to prepare derivative works of, or incorporate into other works. You may remove your User Content from the Noria LMS at any time; however, you acknowledge that Noria may retain archived copies of your User Content. Noria does not assert any ownership over your User Content; rather, as between Noria and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content; provided Noria does reserve all right, title and interest in and to Noria LMS Services, including without limitation the User Content included in the Noria LMS Services, as a compilation.
Representations and Warranties.
You represent, warrant, and guarantee that
- you have the full and unrestricted right to grant such rights as set forth herein to User Content and other material you submit to Noria, and that there are no other agreements with any third party in conflict herewith; and
Noria respects the intellectual property rights of others and prohibits Authorized Users from uploading, posting or otherwise transmitting on the Noria LMS or Noria LMS Services any materials that violate another party’s intellectual property rights. When Noria receives a reasonably detailed, written notification of an alleged copyright infringement, in conformity with requirements applicable to “Take-Down Notices” under the Digital Millennium Copyright Act (“DMCA”) with respect to Noria LMS Services (including User Content), Noria will promptly investigate such allegation and/or remove or disable access to the allegedly infringing material. Noria will also terminate the accounts of repeat infringers as described below. If you believe that any material on the Noria LMS infringes upon any copyright which you own or control, you may send a written notification of such infringement to Chris Christenson, Noria’s Director of Education, at firstname.lastname@example.org.
Repeat Infringer Policy.
In accordance with the DMCA and other applicable law, Noria has adopted a policy of terminating, in appropriate circumstances and at Noria’s sole discretion, Subscribers and/or their Authorized Users who are deemed to be repeat infringers. Noria may also, at its sole discretion, limit access to the Noria LMS, suspend and/or terminate the registration/account of any Authorized Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Authorized User Profiles and Networks.
The Noria LMS Services may include functionality pursuant to which Authorized Users may publish information about themselves to other users of the Noria LMS (“Profiles”). You may not set up a Profile on behalf of another individual or entity unless you are authorized to do so. NORIA DOES NOT PRE-SCREEN OR APPROVE PROFILES AND CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION CONTAINED IN USER CONTENT AND/OR PROVIDED IN ANY PROFILE, THAT A PROFILE WAS ACTUALLY CREATED AND IS BEING OPERATED BY THE INDIVIDUAL OR ENTITY THAT IS THE SUBJECT OF SUCH PROFILE, AND NORIA IS NOT RESPONSIBLE FOR THE CONTENT OF ANY PROFILE. AUTHORIZED USERS ARE ADVISED TO VERIFY ALL PROFILE DETAILS FOR THEMSELVES AND NORIA SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR DAMAGES OR CLAIMS ARISING OUT OF ANY TRANSACTIONS ENTERED INTO OR OTHER ACTIONS TAKEN ON OR IN CONNECTION WITH ANY USER CONTENT, NORIA LMS SERVICES, OR PROFILE.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Noria LMS or the Noria LMS Services (“Submissions”), provided by you to Noria are non-confidential and shall become the sole property of Noria. Noria shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you or any third party.
No Obligation of Confidentiality.
Subject to all applicable disclaimers set forth herein, Noria’s sole responsibility with respect to limiting or restricting the disclosure or use of User Content is to use commercially reasonable efforts to restrict the accessibility of User Content as released and/or instructed by the Subscriber and its Authorized Users, each using the preference-setting functionality as made available through the Noria LMS Services. Noria does not have any obligation or liability with respect to use and/or disclosure of User Content by Authorized Users who have been authorized by Subscribers and/or Authorized Users (as applicable) to access User Content through the Noria LMS Services. To the extent a Subscriber or Authorized User wishes to limit or restrict the use or disclosure of User Content accessed or obtained through the Noria LMS Services, Subscribers and Authorized Users are responsible for negotiating and executing mutually acceptable agreements of confidentiality/non-disclosure between themselves. Noria reserves the right to disclose, at any time and from time to time, any information or User Content that it seems necessary or appropriate to satisfy any applicable law, regulation, contract obligation, legal or dispute process or other government request. Each Subscriber and Authorized User posting User Content hereby indemnifies, defends and holds harmless Noria and its officers, directors, agents, employees, and affiliates, at Subscriber/Authorized User’s expense, from and against any and all claims, demands, actions, costs, expenses, liabilities, judgments, causes of action, proceedings, suits, losses and damages of any nature, which are threatened or brought against, or are suffered or incurred by, Noria or any such person arising out of, or related to, the use or disclosure of User Content obtained through the Noria LMS Services.
Third Party Web Portals and Content.
The Noria LMS contains (or you may be sent through the Noria LMS or the Noria LMS Services) links to other web portals (“Third-Party Portals”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third-Party Content”). Such Third-Party Portals and Third-Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Portals accessed through the Noria LMS or any Third-Party Content posted on, available through or installed from the Noria LMS, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Portals or the Third-Party Content. Inclusion of, linking to or permitting the use or installation of any Third-Party Portals or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Noria LMS and access the Third-Party Portals or to access, download, use or install any Third-Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any portals to which you navigate from the Noria LMS or relating to any applications you use or install from the Noria LMS.
You are solely responsible for your interactions with other Authorized Users. We reserve the right, but have no obligation, to monitor disputes between you and other Authorized Users.
With respect to any Authorized User, Noria reserves the right, without notice,
- to revoke any User Identity;
- to require Authorized User(s) to change User Identities; or
- to deny, limit or terminate access to the Noria LMS or any portion thereof, whether for Noria LMS security purposes, for violation of the terms and conditions of use referenced herein, or for any other reasons.
Noria retains the right, in its sole discretion, to enhance, modify or alter the operation of the Noria LMS and/or the Noria LMS Services available through the Noria LMS at any time (including without limitation the removal or substitution of specific Noria LMS Services) and further retains the right to make such enhancements, modifications or alterations generally available to other users of the Noria LMS.
- ALL INFORMATION AND SERVICES PROVIDED THROUGH THE NORIA LMS AND BY NORIA, INCLUDING BUT NOT LIMITED TO THE COURSES, GENERALLY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. NORIA DISCLAIMS AND AUTHORIZED USER HEREBY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, TITLE, NONINFRINGEMENT, ANY WARRANTY OF ERROR-FREE OR UNINTERRUPTED OPERATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, ANY WARRANTY OF COMPATIBILITY BETWEEN THE NORIA LMS SERVICES AND AUTHORIZED USER OWNED EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE NORIA LMS SERVICES, EQUIPMENT, SOFTWARE, OR DATA. AUTHORIZED USER AGREES THAT NORIA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, EVEN IF NORIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT NORIA DOES NOT WARRANT THE AVAILABILITY, ACCURACY, RELIABILITY, CURRENTNESS AND CONTENT OF ANY SERVICE, DATA OR INFORMATION DOWNLOADED, OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE NORIA LMS OR NORIA LMS SERVICES, INCLUDING BUT NOT LIMITED TO THE COURSES. AUTHORIZED USER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE VIEWED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE NORIA LMS OR NORIA LMS SERVICES ARE AT AUTHORIZED USER’S SOLE RISK AND DISCRETION AND NORIA WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO AUTHORIZED USERS OR THEIR RESPECTIVE PROPERTY. NORIA SHALL NOT BE LIABLE TO SUBSCRIBER, AUTHORIZED USERS OR ANY OTHER THIRD PARTIES NOR DEEMED TO BE IN DEFAULT OF THIS AGREEMENT, ON ACCOUNT OF ANY DELAYS, ERRORS, MALFUNCTIONS, COMPATIBILITY PROBLEMS OR BREAKDOWNS WITH RESPECT TO THE NORIA LMS, NORIA LMS SERVICES, NORIA EQUIPMENT, DATA OR SERVICES PROVIDED HEREUNDER, UNLESS SUCH DELAY, ERROR, MALFUNCTION OR BREAKDOWN RESULTS SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF NORIA.
- Noria is not responsible or liable in any manner for any User Content or Third-Party Content posted on the Noria LMS or in connection with the Noria LMS Services, whether posted or caused by Authorized Users of the Noria LMS, by Noria, by third-parties or by any of the equipment or programming associated with or utilized in the Noria LMS or the Noria LMS Services. Although Noria provides rules for Authorized User conduct and postings, Noria does not control and is not responsible for what Authorized Users post, transmit or share on the Noria LMS and is not responsible for any false, deceptive, misleading, fraudulent, offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Noria LMS or in connection with any User Content or Third-Party Content. Noria is not responsible for the conduct, whether online or offline, of any Authorized User of the Noria LMS or Noria LMS Services.
Subject to any disclaimers or limitations of liability set forth or incorporated by reference herein, Subscriber shall indemnify, defend and hold harmless Noria, its past and present directors, affiliates, partners, officers, employees and agents from and against all liabilities, damages and expenses, claims for damages, suits, proceedings, recoveries, judgments or executions (including but not limited to litigation costs, expenses, and reasonable attorneys’ fees) which may be suffered by, accrued against, charged to or recoverable from Noria, its past and present directors, affiliates, partners, officers, employees or agents (“Claims”) by reason of or in connection with Subscriber’s or its Authorized Users’
- use or misuse of the Noria LMS;
- performance or failure to perform, or improper performance of any of Subscriber’s or its Authorized Users’ obligations under this Agreement; or
- acts or omissions in reliance upon the output of the Noria LMS, including without limitation data visualizations, reports, spreadsheets or other materials displayed or downloaded via the Noria LMS, whether such output or materials are used singly or in combination with other information.
Unless expressly provided hereunder, Noria and/or its licensors do not grant any express or implied right(s) to Subscriber and/or any of its Authorized Users under any patent(s), copyright(s), trademark(s), or trade secret information through the Noria LMS. Accordingly, unauthorized use of any material contained on the Noria LMS may violate copyright laws, trademark laws, trade secret laws, the laws of privacy and publicity, and other regulations and statutes. The contents of and all materials distributed in conjunction with the Noria LMS are Copyright © 2010 Noria Corporation, and/or its licensors, all rights reserved. Noria also owns copyrights in Noria LMS as a whole as well as in each component as collective works and/or compilations, and in the selection, coordination, arrangement, and enhancement of the Noria LMS’ content. Noria and all other names, logos, and icons identifying Noria’s products and services are proprietary marks of Noria Corporation, and any use of such marks without the express written permission of Noria is strictly prohibited. Other product and company names mentioned on the Noria LMS may be the marks of their respective owners.
Noria will use commercially reasonable efforts to keep the Noria LMS Services available for Subscriber’s use and the use of its Authorized Users; however, Noria cannot and will not be responsible for any loss or unavailability of the Noria LMS Services that results from a cause over which it does not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions. No party will be deemed in default of this Agreement as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labor disputes, fire, acts of war, failure of third-party suppliers, or for any other cause beyond the control of that party.
- Nothing in this Agreement is intended or shall be construed to create or establish an agency, partnership, or joint venture relationship between the parties.
- No waiver by either party of any provision or any breach of this Agreement constitutes a waiver of any other provision or breach of this Agreement and no waiver shall be effective unless made in writing. The right of either party to require strict performance and observance of any obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
- Subscriber or its Authorized Users shall not sell, assign, license, sub-license, or otherwise convey in whole or in part to any third party this Agreement or the services provided hereunder without the prior written consent of Noria.
- This is a non-exclusive agreement. Similar agreements may be entered into by either party with any other person.
- This Agreement shall be considered a contract governed by Pennsylvania law and any disputes regarding this Agreement shall be heard by the state courts in Pittsburgh, Pennsylvania, USA, and federal courts located in Pittsburgh, Pennsylvania, USA, and each party consents to the exclusive jurisdiction of such courts.
- If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
- This Agreement, together with the agreements and documents referenced herein, as such may be amended from time to time, constitute the final and complete understanding and agreement between the parties concerning the subject matter hereof. Any prior agreements, understandings, negotiations or communications written or otherwise are deemed superseded by this Agreement. This Agreement may be modified only by a further written agreement executed by an authorized representative of the parties hereto.