LMS Portals Terms of Service
Effective: Thursday, July 30, 2020
The software, documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the "LMS Software") are licensed, not sold, to you by LMS Portals, LLC. ("LMS") for use only under the terms of this License, and LMS reserves all rights not expressly granted to you.
The rights granted herein are limited to LMS and its licensors' intellectual property rights in the LMS Software and LMS and/or LMS's licensor(s) retain ownership of the LMS Software itself.
The terms of this License will govern any software upgrades provided by LMS that replace and/or supplement the original LMS Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Title and intellectual property rights in and to any content displayed by or accessed through the LMS Software belongs to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. This License does not grant you any rights to use such content.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) USING LMS’ SOFTWARE OR LMS’ WEBAPPS IN ANY WAY, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
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1. Definitions. For purposes of this Agreement:
1.1 “Account” means Your Platform account and profile, accessed using Your unique username and password.
1.2 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “API” means the application programming interfaces developed by LMS Portals, LLC that permit You to access certain functionality provided by the platform services. This includes the REST API enabling interaction between the platform services automatically through HTTPS requests, and the application development API that enables integration with other web applications.
1.4 “Content” means all visual, audio and audio-visual content and materials that You or Your End Users post or upload to, or disseminate, distribute or transmit through, the Platform or Portal including all videos, pictures, photographs, text, sound clips, posts, comments, graphics, software, advice, recommendations, data, slides, images, files, links, information, chats, and any other content and materials.
1.5 “Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016/679 (“GDPR”) and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated and the terms “data controller”, “data processor”, “process” and “personal data” shall have the meanings given to those terms in such data protection laws and regulations.
1.6 “Documentation” means the user manuals, help guides, whether in print, electronic form, help videos or on-line help functions for the Platform made generally available by LMS Portals, LLC, as may be updated from time to time.
1.7 “End User” means any individual authorized by You to access and use Your Top-Level Portal or one or more of Your Sub-Portals. “End User”, as defined, is further limited to only the maximum number of End Users permitted by Your Plan.
1.8 “Fees” means the fees payable by You in respect of the Plan to which You have subscribed as set out in the Order Form, subject to change as provided for in Section 8.2 (Updated Fees).
1.9 “Intellectual Property” or “Intellectual Property Rights” means all intellectual property rights, including all copyright, patent, trade secret, trademark, moral, termination, authorship, rights of publicity, privacy and other proprietary rights.
1.10 “Plan” means the LMS Portals, LLC subscription plan to which You have subscribed set out in the Order Form.
1.11 “Platform” means the online learning platform services accessible through http://www.LMSPortals.net (or any successor or alternative sites we may inform you of or You may be aware of), including all Documentation and software in or accessible through the Platform, excluding Your Content. Platform plans and services that you choose to subscribe to and to which the terms and conditions of this Agreement are applicable are those services selected by You in the Order Form.
1.12 “Portal” means the Top-Level Portal and Sub-Portals, together.
1.13 “Revisions” means any updates, upgrades, revisions, changes or alterations to the Platform and its features and functionality.
1.14 “Subscription Start Date” means the date on which Your subscription to the Platform starts, as set forth in an Order Form.
1.15 “Subscription Period” means the period of time for which you have subscribed to the Platform, as set forth in an Order Form.
1.16 “Sub-Portal” means the one or more web-based client portals (each with its own unique login domain) established by You on the Platform for the purposes of delivering Content, training, and courses to End Users. Your Plan specifies the maximum number of Sub-Portals You may create.
1.17 “Support Services” means LMS Portals, LLC’s support services offered with Your Plan, as more particularly described in the Support Services at https://www.LMS Portals.com/support-services/ and incorporated herein by reference.
1.18 “Top-Level Portal” means the top level portal You establish when You create an account on the Platform to deliver Content, training and courses to End Users.
2. Use of Platform.
2.1 Provision of the Platform.
2.1.1 Subject to the terms and conditions of this Agreement and solely to the extent permitted by Your Plan, LMS Portals, LLC hereby grants You a limited, non-exclusive, non-transferable license and use the Platform to:
2.1.1.1 create and upload Content to Your Top-Level Portal and Sub-Portals;
2.1.1.2 run courses and training for End Users from Your Top-Level Portal for Your internal business purposes or, if expressly permitted to do so by Your Plan, on a commercial basis (i.e. by charging End Users through the E-Commerce Module); and
2.1.1.3 sublicense the right to access and use Your Top-Level Portal and Sub-Portal(s) to Your End Users.
3. Use Restrictions
3.1 Except as expressly permitted by the terms of this Agreement, neither You nor Your End Users shall:
3.1.1 copy, modify, adapt, translate, distribute, market, lease, make available, resell, make derivative works of, disassemble, reverse compile or reverse engineer or otherwise reduce to human-perceivable form any part of the Platform or LMS Portals, LLC Intellectual Property; or discover or disclose the source code, methods and concepts embodied therein, except as may be allowed by any applicable law notwithstanding contractual prohibition;
3.1.2 store, distribute, post, upload or transmit any Content through the Platform (including Your Sub-Portals) that is or is reasonably perceived to be infringing, unlawful or in violation of third party privacy rights;
3.1.3 introduce any virus, worm, malware, spyware, Trojan horse or other harmful or malicious code to the Platform (including Your Sub-Portals);
3.1.4 intentionally interfere with or disrupt the integrity or performance of the Platform;
3.1.5 access and use the Platform in order to (i) build a product or service competitive with the Platform, (ii) copy any ideas, features, functions or graphics of the Platform, or (iii) determine whether the Platform is within the scope of any patent;
3.1.6 interfere with any markings on or in the Platform which refers to LMS Portals, LLC or includes any of its trademarks or logos;
3.1.7 use the Platform for the purposes of direct marketing or promotion to anyone other than Your End Users and their customers;
3.1.8 suggest or state that LMS Portals, LLC endorses or supports Your Content or any training or other course You are running;
3.1.9 use the Platform to store or transmit (i) sensitive personal data, as defined by the GDPR, (ii) any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996 as amended and supplemented; (iii) financial information protected under the Gramm-Leach-Bliley Act; (iv) information that is subject to Payment Card Industry Data Security Standards or (v) any matter that is export-controlled; or
3.1.10 use the Platform for any illegal, unauthorized or otherwise improper purposes. This includes, but is not limited to the following:
3.1.10.1 copy, reproduce, modify, create derivative works from, distribute or publicly display the Services or any LMS Portals, LLC, Content, or any content provided by a third party, except to the extent permitted by law, or with the prior written consent of LMS Portals, LLC, or the appropriate third party (as applicable);
3.1.10.2 use the Services or any LMS Portals, LLC, Content to establish, maintain or provide, or assist in establishing, maintaining or providing a learning management system;
3.1.10.3 infringe any applicable laws or regulations, or the rights of LMS Portals, LLC, or any third party;
3.1.10.4 upload, publish or post false, inaccurate, misleading, defamatory or offensive content;
3.1.10.5 impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
3.1.10.6 distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes, or distribute viruses or any other technologies that may harm LMS Portals, LLC, , any of the Services, or the interests or property of any third party;
3.1.10.7 take any action that imposes, or may impose, in LMS Portals, LLC, ’s sole discretion, an unreasonable or disproportionately large load on LMS Portals, LLC, ’s infrastructure;
3.1.10.8 use the Services in any manner that could damage, disable, overburden, or impair the Services or any network or other infrastructure used by or connected to LMS Portals, LLC, ;
3.1.10.9 interfere or attempt to interfere with the proper working of the Services, any other party's use and enjoyment of the Services, or any activities conducted on, or in connection with, any of the Services;
3.1.10.10 bypass any robot exclusion headers or other measures LMS Portals, LLC, may use to prevent or restrict access to LMS Portals, LLC, ; or
3.1.10.11 gain, or attempt to gain, unauthorized access to any areas of the Services, other accounts, or any systems, networks or infrastructure used by or connected to LMS Portals, LLC, .
3.1.11 You must immediately notify us and any relevant authorities if you become aware of any use of the Services that is, or is likely to be, illegal or threatening to the health or safety of any person.
3.1.12 You agree and consent to LMS Portals, LLC, collecting, using and disclosing to third parties your personal information in accordance with our Privacy Policy (included here). You acknowledge that your submission of any information, statements, data, and content to us is voluntary on your part and that LMS Portals, LLC, may process such information within the terms of the Privacy Policy.
4. Your Responsibilities
4.1 Usage Limits. You are responsible for ensuring that You do not exceed the usage and other limits specified by Your Plan. You shall not allow any End User profile to be used by more than one individual person unless it has been reassigned in its entirety to a different individual.
4.2 Account
4.2.1 You are responsible for all use of Your Account, including all Content, regardless of whether undertaken by You, Your employees or a third party (including Your contractors, agents or End Users). You must contact LMS Portals, LLC immediately, either via email (support@lmsportals.com) or by way of first class mail to the following address: “LMS Portals, LLC, 119 Drum Hill Road, #252 Chelmsford, MA 01824, Attention: Support”, if You know or suspect Your Account has been accessed by an unauthorized third party or used in breach of this Agreement.
4.3 Compliance with Laws
4.3.1 You agree to use the LMS Software and any services in compliance with all applicable laws, including local laws of the country or region in which You reside or in which You download or use the LMS Software and services, including but not limited to privacy and data collection laws and regulations, with respect to any connection, observation, management or administration of Connected Devices through the use of the LMS Software.
4.3.2 As a condition to using the LMS Software, You represent and warrant to LMS that You have all the necessary rights and consents from Your company or educational institution and the Connected Device (and where necessary the end user’s parent or legal guardian), for such connection, observation, management or administration.
5. Acknowledgements
5.1 Relationship with End Users.
5.1.1 Any transactions or terms in relation to the use of the Portal by Your End Users is solely between You and each End User. Other than as specifically provided for herein, LMS Portals, LLC has no responsibility or liability to Your End Users and nothing herein confers a benefit on any person other than You.
5.2 Training Materials
5.2.1 You are solely responsible for providing all training, teaching, courses, instruction and other Content for Your Portals and End Users. All Content is uploaded at Your own risk and LMS Portals, LLC recommends that You regularly back-up all Content uploaded onto the Platform.
5.3 Equipment
5.3.1 You and Your End Users are solely responsible for supplying all equipment, Internet access and bandwidth needed to properly access and use the Platform.
5.4 API
5.4.1 LMS Portals, LLC may provide an API for Your convenience. You expressly understand that LMS Portals, LLC may change the API, with or without notice, at any time. LMS Portals, LLC shall have no liability to You or any third party with respect to any changes, whether announced or unannounced.
5.5 E-commerce Module.
5.5.1 Payments by End Users to You through the e-commerce module available via the Platform are processed by a third party payment provider. LMS Portals, LLC has no liability for any claims arising out of or in connection with the processing or failure to properly process any End User payments by the third party payment processor. You are responsible for any transactions made through the E-Commerce module including compliance with any VAT and/or sales tax liability that may apply.
5.6 Content
5.6.1 LMS Portals, LLC does not monitor any Content on the Platform (including Your Sub-Portals) but reserves the right (but is not required) to remove, delete and/or destroy any Content that is in breach of this Agreement.
5.7 White Labeling
5.7.1 Certain LMS Portals, LLC Plans allow You to “white-label” Your Portals. If expressly permitted to do so by Your Plan, You are granted the right to brand Your Portals on a white-labelling basis, however LMS Portals, LLC may include a hypertext link and/or icon logo with the words “Powered by LMS Portals, LLC” (or equivalent) at the foot of each page of the Platform.
5.8 No High Risk Activities.
5.8.1 You acknowledge that the Platform is not designed or intended for use in high-risk activities including, without limiting the generality of the foregoing, in any direct or active operations of any equipment in any nuclear, aviation, mass transit, or medical applications, or in any other inherently dangerous operation.
6. Support
6.1 You are entitled to LMS Portals, LLC’s support services offered with Your Plan as more particularly described in the Support Services at https://www.LMS Portals.com/support-services/ which are incorporated by reference to these Terms.
7. Revisions
7.1 LMS Portals, LLC reserves the right to make Revisions to the Platform. Any such Revisions shall be considered part of the Platform for all purposes of this Agreement.
8. Payment
8.1 Fees. You agree to pay all Fees in accordance with the Plan You selected. You may not withhold payment or claim any right of set-off without prior written consent.
8.2 Updated Fees. Plan Fees may change over time, however, LMS Portals, LLC will give You thirty (30) days prior notice, generally via email. If LMS Portals, LLC revises Your Plan Fees, such new Fees shall not apply to the Subscription Period for which you have already subscribed but shall apply to any renewal Subscription Period commencing after the effective date of change in Fees.
8.3 Payment Methods. You will provide LMS Portals, LLC with a valid payment method reasonably acceptable to LMS Portals, LLC. LMS Portals, LLC will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt. If You enroll in the Automatic Bill Payment option, You authorize LMS Portals, LLC to charge Your credit card for the Fees for the initial Subscription Period and any renewal Subscription Period(s).
8.4 Taxes. All Fees are exclusive of any taxes and duties such as value added tax, sales-and-use tax, import or other duties. You are responsible for paying all taxes and duties at the appropriate rate and in the manner for the time being provided by applicable law.
8.5 Overdue Fees. If You fail to pay LMS Portals, LLC all Fees by thirty (30) days after the due date, LMS Portals, LLC may, in its sole discretion, without limiting its other rights and remedies, (a) disable access for You and End Users to some or all of the Platform and/or terminate this Agreement; (b) delete and remove Your Top-Level Portal and Sub-Portal(s) and/or Content. LMS Portals, LLC will give You at least seven (7) days’ prior written notice that Your account is overdue, before suspending access to the Platform services. LMS Portals, LLC shall not exercise its rights under this Section 8.5 if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
9. Term
9.1 This Agreement shall have a term commencing on the Subscription Start Date and ending upon the expiration or termination of all Order Forms issued hereunder. Unless terminated in accordance with this Agreement or otherwise provided for in an Order Form, each Order Form shall have a Subscription Period of one year commencing on its effective date. The Subscription Period will automatically renew for subsequent 12-month period(s) at the end of the Subscription Period in the Order Form, unless either party sends the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Period.
10. Cancellation, Suspension, Termination.
10.1 Cancellation by Customer. You may terminate all access to the LMS Portals, LLC Platform at any time with 30 days’ prior written notice, however, payment for the current Subscription Period is non-refundable.
10.2 Suspension. In addition to our rights under Section 8.5 (Overdue Fees), LMS Portals, LLC may immediately restrict or suspend (on a temporary or permanent basis) Your or any End User’s right to access or use any portion or all of the Platform and/or to delete one or more of Your End Users You if we reasonably determine: Your or an End User’s use of the Platform (i) violates Section 3 (Use Restrictions), (ii) poses a security risk to the Platform or any third party, (iii) violates applicable law or could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent. LMS Portals, LLC will use commercially reasonable efforts under the circumstances to provide you with advance notice of any suspension under this Section 10.2 and, if practicable, an opportunity to cure any breach or violation prior to any such suspension.
10.3 This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from LMS if You fail to comply with any term(s) of this License. Upon the termination of this License, You shall cease all use of the LMS Software and destroy all copies, full or partial, of the LMS Software. Sections 3, 4, 5, 6, 7, 8, 9, 10 and 12 of this License shall survive any such termination.
10.4 Termination by Customer. You may terminate this Agreement or any Order Form for cause upon thirty (30) days written notice to LMS Portals, LLC of material breach if such breach remains uncured at the expiration of such period.
10.5 Refund or Payment upon Termination. In no event shall any termination relieve Customer of the obligation to pay any Fees payable to LMS Portals, LLC for the period prior to the effective date of termination.
10.6 Effect of Termination
10.6.1 Your rights under this License will terminate automatically without notice from LMS if you fail to comply with any term(s) of this License.
10.6.2 In addition, LMS reserves the right to terminate this License if a new version of LMS's operating system software or the LMS Software is released which is incompatible with LMS’ Software.
10.6.3 Upon the effective date of expiration or termination of this Agreement or any Order Form Subscription Period, You shall immediately cease any further use of the Platform. It is Your responsibility to retain the original source of all Content and to export Your End User training history prior to expiration or termination. LMS Portals, LLC reserves the right to delete all Content from the Platform thirty (30) days following the expiration or termination of this Agreement or any Order Form.
10.6.4 Termination or expiration of this agreement does not affect or prejudice any rights, remedies, obligations or liabilities a party accrued up to the date of termination or expiration or the continuation or commencement of any provision that expressly or by implication is intended to survive the termination or expiration of this Agreement.
11. Intellectual Property
11.1 Other than Your Content and Your trademarks, You acknowledge that the Platform and all Intellectual Property contained therein, is proprietary to LMS Portals, LLC and its licensors, and LMS Portals, LLC and its licensors retain exclusive ownership of the same throughout the world.
11.2 Except for the limited express license granted to You under this Agreement, LMS Portals, LLC and its licensors retain all right, title or interest in and to the Platform.
11.2.1 You acknowledge and agree that any ideas, enhancements, improvements, additions or modifications to the Platform suggested by You, and any and all Intellectual Property Rights contained therein, will become LMS Portals, LLC property, and You hereby assign and agree to assign any and all right, title and interest to any rights in such suggestions to LMS Portals, LLC.
11.3 Customer Content
11.3.1 You hereby grant LMS Portals, LLC the non-exclusive worldwide, royalty-free right to use, reproduce, store, transmit, perform, adapt or display the Content solely to the extent required for LMS Portals, LLC’s provision of the Platform under this Agreement.
11.3.2 Subject to the limited rights granted by You hereunder, LMS Portals, LLC acquires no right, title or interest from You or Your licensors under this Agreement in or to the Content, including any Intellectual Property Rights therein.
12. Security and Data Protection
12.1 Security. LMS Portals, LLC shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content in accordance with LMS Portals, LLC’s security measures as described in Annex 2 (Description of Security Measures) of the Data Processing Agreement at https://www.LMS Portals, LLC.com/customer-data-processing-agreement/ and incorporated herein by reference, LMS Portals, LLC will not access or use Your Content except as necessary to maintain or provide the Platform, or as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, LMS Portals, LLC will give you notice of any legal requirement or order referred to in this Section 12 so that You may provide an objection to such disclosure.
12.2 Data Protection
12.2.1 If LMS Portals, LLC processes any Content comprised of personal data, as defined in the Data Protection Legislation, each party shall duly comply with all of its obligations under the Data Protection Legislation that arise in connection with this Agreement and shall adhere to the provisions set out in the Data Processing Agreement at https://www.LMS Portals, LLC.com/customer-data-processing-agreement/ and incorporated herein by reference.
12.3 Your Personal Information and Our Privacy Policy
12.3.1 LMS takes the security of your personal information very seriously. LMS online services such as the LMS Portals protect your personal information during transit using encryption such as Transport Layer Security (TLS). When your personal data is stored by LMS, we use computer systems with limited access housed in facilities using physical security measures.
12.3.2 When you use some LMS products, services, or applications or post on an LMS forum, chat room, or social networking service, the personal information and content you share is visible to other users and can be read, collected, or used by them. You are responsible for the personal information you choose to share or submit in these instances. For example, if you list your name and email address in a forum posting, that information is public. Please take care when using these features.
12.3.2.1 By publicly posting content when you use LMS' software, you are directing us to disclose that information as broadly as possible, including through our APIs, and directing those accessing the information through our APIs to do the same.
12.3.3 We use your contact information, such as your email address or phone number, to authenticate your account and keep it - and our services - secure, and to help prevent spam, fraud, and abuse. We also use contact information to enable certain account features and to send you information about our services.
12.3.3.1 If you email us, we will keep the content of your message, your email address, and your contact information to respond to your request.
12.3.4 Notwithstanding anything to the contrary in this Privacy Policy Section or controls we may otherwise offer to you, we may preserve, use, share, or disclose your personal data or other safety data if we believe that it is reasonably necessary to comply with a law, regulation, legal process, or governmental request; to protect the safety of any person; to protect the safety or integrity of our platform, including to help prevent spam, abuse, or malicious actors on our services, or to explain why we have removed content or accounts from our services ; to address fraud, security, or technical issues; or to protect our rights or property or the rights or property of those who use our services. However, nothing in this Privacy Policy is intended to limit any legal defenses or objections that you may have to a third party’s, including a government's request to disclose your personal data.
12.4 Personal Data Retention
12.4.1 It is your responsibility to backup all existing data, software, and programs, and to erase all existing data before receiving services. LMS is not responsible for loss, recovery, or compromise of data, programs or loss of use of equipment arising out of the services provided by LMS. You also represent that your data does not contain illegal files or data.
12.5 Children
12.5.1 We understand the importance of taking extra precautions to protect the privacy and safety of children using LMS products and services. Children under the age of 13, or equivalent minimum age in the relevant jurisdiction, are not permitted to create their own LMS User Accounts, unless their parent provided verifiable consent.
12.6 Unauthorized Access
12.6.1 You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any LMS server, or to any of the services offered on or through the Site, by hacking, password "mining" or any other illegitimate means.
13. Warranties
13.1 Disclaimer of Warranties
13.1.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE LMS SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE LMS SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
13.1.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LMS SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LMS AND LMS’S LICENSORS (COLLECTIVELY REFERRED TO AS “LMS” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LMS SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
13.1.3 LMS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LMS SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LMS SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LMS SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE LMS SOFTWARE OR SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES OR ANY OTHER LMS PRODUCTS OR SERVICES, OR THAT DEFECTS IN THE LMS SOFTWARE OR SERVICES WILL BE CORRECTED. INSTALLATION OF THIS LMS SOFTWARE AND USE OF THE SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES AS WELL AS OTHER LMS PRODUCTS OR SERVICES.
13.1.4 YOU FURTHER ACKNOWLEDGE THAT THE LMS SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE LMS SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
13.1.5 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LMS OR AN LMS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LMS SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
13.2 Limitation of Liability
13.2.1 TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL LMS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LMS SOFTWARE OR SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE LMS SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
13.2.2 In no event shall LMS’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00).
13.3 The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
14. Export Control
14.1 You may not use or otherwise export or re-export the LMS Software except as authorized by United States law and the laws of the jurisdiction in which the LMS Software was obtained. In particular, but without limitation, the LMS Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the LMS Software, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the LMS Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
15. Indemnification
15.1 Customer Indemnification
15.1.1 You shall defend LMS Portals, LLC against any claim, demand, suit, governmental action or proceeding (a “Claim”) made or brought against LMS Portals, LLC by a third party arising out of or in connection with
15.1.1.1 (i) Your use or the use by Your End Users of the Platform in violation of this Agreement or any applicable law,
15.1.1.2 (ii) any Content posted, uploaded, distributed, transmitted or disseminated by You or Your End Users via the Platform, or
15.1.1.3 (iii) a dispute between You and any End User, and
15.1.1.4 You shall indemnify LMS Portals, LLC for any damages, fines, attorney fees and costs incurred against LMS Portals, LLC as a result of, or for any amounts paid by LMS Portals, LLC under a court-approved settlement of such Claim.
15.2 Indemnification Exclusions. LMS Portals, LLC shall have no obligation under this Agreement or otherwise to the extent that an Intellectual Property Claim or any other Claim is based on or arises from
15.2.1 (a) Your or Your End Users’ Content;
15.2.2 (b) a modification of the Platform not made or provided by LMS Portals, LLC,
15.2.3 (c) Your or an End Users’ use of the Platform or in a manner contrary to the instructions given to You by LMS Portals, LLC or in breach of this Agreement; or
15.2.4 (d) Your or an End Users use of the Platform after notice of the alleged or actual infringement from LMS Portals, LLC or any appropriate authority.
15.3 Procedure. Each party’s indemnification obligations in this Section 15 are subject to
15.3.1 (a) prompt notification of any such Claim (provided that the indemnified party’s failure to provide reasonable written notice shall only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party’s ability to defend or settle such claim);
15.3.2 (b) the transfer of sole control of the defense and any related settlement negotiations to the indemnifying party (provided that the indemnifying party may not settle any Claim unless the settlement unconditionally releases the indemnified party of all liability); and
15.3.3 (c) the indemnified party’s reasonable cooperation in the defense of such claim.
15.4 Exclusive Remedy. This Section 15 states Your sole and exclusive rights and remedies, and LMS Portals, LLC’s entire obligation, responsibility and liability, for infringement or claims alleging infringement.
16. Confidentiality
16.1 Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. This provision does not apply to information which (a) is or becomes publicly known or is readily ascertainable through no act or omission of the receiving Party; (b) is lawfully in the possession of the receiving party before the disclosure took place; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (d) was communicated by disclosing Party to an unaffiliated third party free of any obligation of confidence; and/or (e) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, You shall treat the Platform and any Intellectual Property Rights therein as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without LMS Portals, LLC’s prior written permission. Each party’s obligations under this Section 16 shall apply at all times during the term of this Agreement and shall survive termination of this Agreement.
17. Aggregated Anonymous Data.
17.1 The Platform, in the normal course of operations, provides LMS Portals, LLC with aggregated, statistical data (such as product or feature usage and functionality metrics), which is anonymized and aggregated with other such anonymized data so that it does not and cannot contain any information identifiable or attributable to You or any End User, either alone or in combination with other data (“Aggregated Anonymous Data”). To the extent that any Aggregated Anonymous Data is collected by LMS Portals, LLC, You agree that LMS Portals, LLC may use, store, analyze, and disclose such Aggregated Anonymous Data without Your prior written consent.
18. Arbitration
18.1 Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
19. Miscellaneous
19.1 Publicity. You agree that LMS Portals, LLC may, subject to Your prior written consent, use Your business name and logo in accordance with any publicly available trademark usage guidelines on its marketing and promotional materials for the Platform, for as long as You use the Platform.
19.2 Force Majeure. Neither party shall be deemed to be in default of this Agreement if it is prevented, hindered or delayed in performing its obligations under this Agreement by acts, events, omissions or accidents beyond its reasonable control including strikes, lock-outs or other industrial disputes (including with respect to its staff), failure of a utility service, Internet access or transport or electronic communications networks, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, fire, flood storm or default of suppliers or subcontractors.
19.3 Amendment and Waiver. The provisions in this Agreement may only be waived by a party in writing by an express reference to this clause. No delay or neglect on a party’s part in enforcing any provision of this Agreement is a waiver and does not in any way prejudice its right under this Agreement. A waiver by a party of any breach of any provision of this Agreement does not constitute a general waiver of such provision.
19.4 No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
19.5 Relationship of the Parties. This Agreement does not give rise to any partnership, joint venture, agency or employment relationship between You and LMS Portals, LLC.
19.6 Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a party pursuant to the terms of this Agreement shall be: (y) if to You, to the email address provided, and (z) if to LMS Portals, LLC, to legal@LMS Portals, LLC.com or to any other email address notified to You by us, with written copies of any legal notices sent to LMS Portals, LLC, 119 Drum Hill Road, #252 Chelmsford, MA 01824, Attention: Legal. Notice shall be deemed given (a) when delivered personally, (b) on the next business day after timely delivery to an overnight courier, (c) as of the date received via email.
19.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, LMS Portals, LLC may assign this Agreement in its entirety (including all Order Forms), and its rights or obligations hereunder, without Customer’s consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of LMS Portals, LLC’s assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
19.8 Survival. For avoidance of doubt, any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
19.9 Severability. If any provisions of this Agreement are held to be unenforceable, illegal or void in whole or in part the remaining portions of this Agreement shall remain in full force and effect.
19.10 Beta Testing. In any instance where the user agrees to test for the Company software that is in a Beta Release, the user agrees that the Software has been developed to permit the user to test the software’s operational ability for LMS and agrees that such software will not be relied upon or warrantied against any malfunction or period of defectiveness.
19.10.1 The User also understands that LMS will use reasonable efforts to correct errors, if any, which are discovered within Beta Period, which either are present at the time of delivery of the Software or are caused by corrections performed by LMS and which inhibit the Software's performance such that it does not perform substantially in accordance with the specifications contained in the applicable Software manual.
19.10.2 The preceding remedies are available to Customer only if
19.10.2.1 (i) LMS is notified, in writing, by Customer of any defect within fifteen (15) days after Customer's discovery of the defect,
19.10.2.2 (ii) Customer's notification shall contain a detailed description, in writing, of any malfunction of the Software, including the frequency of the malfunction and the conditions surrounding the malfunction,
19.10.2.3 (iii) LMS from its examination can repeat the error or malfunction to disclose that such defect actually exists, and
19.10.2.4 (iv) the Software has not been subjected to misapplication, misuse, damage, negligence or accident. Any use of or modifications made to software not supplied by LMS but which interface with the Software and which impair the functionality of the Software shall be undertaken at Customer's sole risk.
19.10.3 Users acknowledge that LMS’ ability to provide corrections to both Beta and Release grade software require User’s full cooperation, including sample and/or diagnostic output and reasonable access to the Authorized Equipment and may require down-time of the Authorized Equipment.
19.10.4 LMS’ obligation is limited to the above remedy and LMS makes no warranty that operation of the Software will be uninterrupted or error free or that any errors discovered can be corrected.
19.11 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of this Agreement shall expressly prevail, unless such exhibit, addendum or Order Form expressly references such conflict or inconsistency, in which case the exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
19.12 Governing Law. This Agreement will be governed by the laws of the State of Massachusetts, USA without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the Parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Massachusetts, and the Parties hereby agree to submit to the jurisdiction and venue of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.