This Agreement is by and between Aperian Global, having an address of 1 Kaiser Plaza, Suite 785, Oakland, CA 94612, (hereinafter, “Aperian”) and the entity agreeing to these terms (hereinafter, “Customer” or “you”). This Agreement is effective as of the date you click the “Continue” button below (the “Effective Date”).
If you are accepting on behalf of your institution or another entity, you represent and warrant that: (i) you have full legal authority to bind the institution, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your institution or the applicable entity, do not click the “I Accept” button below. This Agreement governs Customer’s access to and use of the Service.
Site License to Access the GlobeSmart Learning Platform (the “Platform”) and related online learning tools as specified in Product Details above.
1.2. Aperian hereby grants to Customer a limited, non-exclusive, non-transferable, revocable, worldwide right and license to access and use the Platform and related online learning tools as specified in Product Details above.
1.3. All access and use of the Platform under this license shall be by Customer only, used exclusively for Training of Customer, and not used for any other entity.
1.4. Subscribers in good standing who have successfully completed a qualifying Certification program may receive a discount off the end-user ‘list’ price for use of the assessments with their own clients, as long as such client is not an academic institution and the price extended by such subscriber to end users is equal to AG’s then current list price. Separate discounts may apply to academic institutions.
1.5. This Agreement and all obligations, rights and licenses granted hereunder are personal to Customer and may not be transferred or sublicensed.
1.6. Other than as expressly set forth herein, no other rights, title or interest are granted Customer under this Agreement.
Term and Termination
2.1. This Agreement shall commence on the date that the Customer clicks the “I Accept” button and will automatically expire after the time specified in Product Details above.
2.2. With the exception of material breach resulting from Customer’s interference with the proper operation of the Platform, as more specifically described in section 2.3 below, or Customer’s provision of access in contravention of section 1.3, either party in its sole discretion may terminate this Agreement for material breach by the other with 30 days advance written notice describing the material breach, unless such material breach is fully cured within thirty (30) days of the receipt of the notice of material breach.
2.3. Aperian may immediately terminate access to the Aperian online Services upon learning (i) that Customer has interfered or attempted to interfere with the proper operation the Platform or related online learning tools, including but not limited to, modification or destruction of the content, structure or visual presentation of the Platform, or (ii) that Customer has infringed Aperian’s intellectual property rights in any way, including by providing unauthorized access to the Platform contrary to the provisions of section 1.2: provided Aperian gives the Customer immediate notice describing the material breach or breach of security. In the event the Customer cures the material breach or breach of security within thirty (30) days of the receipt of the notice of material breach to Aperian’s satisfaction, Aperian will promptly restore access in accordance with the terms and conditions of this Agreement.
2.4. Customer shall have the right, at any time, to terminate, with or without cause, this Agreement, in whole or in part, by written notice to Aperian specifying the date of termination. In the event of such termination for convenience, Aperian shall be entitled to payment for all licenses previously accepted by Customer and Aperian shall not be entitled to any other compensation in connection with Customer’s termination for convenience and in no event is Customer liable to Aperian for any direct, indirect, special or consequential damages, lost profits, penalties or costs arising out of any termination.
2.5. Aperian applies a no-refunds policy. There will be no refunds for early termination for convenience by Customer. In cases of subscription by error, Customer may request a refund within three (3) days of payment. The request must describe the reason for the refund. Refund requests are processed on a case-by-case basis. If you believe you are due a refund, please contact us at email@example.com.
2.5. All rights and licenses granted to Customer under this Agreement are permanently revoked with the expiration or termination of this Agreement.
Pricing & Payment
3.1 All payments due are in U.S. dollars unless otherwise indicated on the Order Page or invoice.
3.2 Fees for Credit Card orders are due immediately upon order placement. Aperian will bill the credit card provided via the Order Page for all applicable Fees when due. If credit card authorizations or charge attempts are declined, Aperian may immediately disable or cancel the Service, in its sole discretion.
3.3 Payment for online orders will be completed during check-out and will be charged to Customer’s credit card via PayPal. Customer is responsible for any taxes and Customer will pay Aperian for the Services without any reduction for such amounts. If Aperian is obligated to collect or pay taxes, the taxes will be listed in the description of the charges payable by Customer upon check-out.
Proprietary Rights and Confidentiality
4.1. The contents of the Platform and the related online learning tools, including but not limited to GlobeSmart®, are protected by copyright pursuant to U.S. and international copyright laws. All rights are reserved. Any unauthorized, downloading, copying, distributing, publishing, modification, addition, alteration, display, sale, license or use of the content of the Platform and related online learning tools, in whole or in part, is strictly prohibited and may result in termination of service.
4.2. All right, title and interest (including but not limited to all copyrights, Trademarks and other intellectual property rights) in the Platform, its content (in both print and machine readable forms) and related online learning tools belong solely to Aperian and/or its affiliates or licensors. Customer acquires no ownership or other proprietary interest in the Platform, its content, related online learning tools, or any authorized copies thereof. Customer may not remove or obscure any legal notice.
4.3. Confidentiality: For the term of this Agreement and for a period of three (3) years following any termination of this Agreement, except with the prior written permission of Aperian, Customer agrees not to disclose to any third party any nonpublic information related to or arising from the access and use of the GlobeSmart Learning Platform software, including but not limited to user names, passwords, access codes, functional features of the GlobeSmart Learning Platform software, aggregated data and information accessible through the use of the GlobeSmart Learning Platform software, and any AG technical, business, scientific, research, development and product information disclosed to Subscriber by AG or a representative of AG (hereinafter “Confidential Information”).
Availability and Support
5.1. Up-time: The Platform will be available 99% of the time as measured on a monthly basis (“Uptime Availability”), excluding routine maintenance, reasonable downtime from interruption, termination, or failed operation of the Internet, private intranet, or of third party telecommunication services and Force Majeure events. Customer shall have the right to monitor the uptime/availability of the Service.
5.2. Aperian will grant Customer access to the Site 24 hours per day, 7 days a week. If the server or operating system needs maintenance, there will be scheduled downtime. Downtime will be scheduled and performed to the extent possible during non-business hours and Aperian will provide at least 24 hours notice. If service outage is more than 1 hour, Aperian will provide a message for Customer indicating the length of time the service will not be available.
Disclaimer of Warranties
6.1. Given the nature of online services, Aperian does not warrant that the access, use, function or operation of the Platform and related online learning tools will be uninterrupted or error-free, that defects will not exist, or that the Platform and related online learning tools will be free of viruses or other harmful elements. Aperian does not warrant that the Platform content is accurate, complete, current or error free.
6.2. EXCEPT AS EXPRESSLY STATED HEREIN, THE PLATFORM, INCLUDING ITS CONTENTS AND ACCESS PAGE ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, AND APERIAN HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS MAY NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES, SO SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS.
Limitation of Liability
EXCEPT FOR DAMAGES RELATED TO PERSONAL INJURY OR DEATH CAUSED BY EITHER PARTY’S NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR ANY OTHER NON-DIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR ANY CLAIM OR DEMAND AGAINST THE OTHER PARTY BY ANOTHER PARTY DUE TO ANY CAUSE WHATSOEVER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). EXCEPT AS PROVIDED BY LAW IN CASE OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE AND EXCEPT FOR DAMAGES RELATED TO PERSONAL INJURY OR DEATH, OR VIOLATIONS OF PROPRIETARY RIGHTS INDEMNIFICATION OR CONFIDENTIALITY, IN NO EVENT SHALL APERIAN’S TOTAL AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE LICENSE FEE.
8.1. Customer agrees to indemnify, defend and hold harmless Aperian, its affiliates, and their officers, directors, shareholders, employees and representatives from and against any and all claims, demands and actions (including damages, losses, expenses, attorneys fees and litigation costs) arising from or related to an allegation of detrimental reliance on the use of the GlobeSmart Learning Platform and related web tools (and/or its contents) by a person authorized by Customer to access and use the Platform pursuant to the terms of this Agreement; provided Aperian promptly notifies Customer of any such claim, demand and/or action and reasonably cooperates with Customer, at Customer’s sole expense, in the defense or resolution of any such claim, demand and/or action.
9.1. Assignment: Neither this Agreement nor any rights of Customer under this Agreement may be assigned, transferred, or conveyed by operation of law or otherwise without prior written consent.
9.2. Force Majeure: If either Aperian or Customer is unable to perform its obligations under this Agreement by causes not reasonably within its control, including but not limited to power outage, war, riot, or government restraint, then the party unable to perform shall give to the other party prompt written notice. Thereupon, the obligations of the party giving notice shall be suspended for so long as such cause(s) exist. If the force majeure lasts longer than 15 days at any one time, the party receiving notice may, at its election, extend the term of this Agreement commensurate with the duration of the force majeure (not to exceed 6 months) or terminate this Agreement.
9.3. Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to this subject matter and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties. Each party acknowledges that in entering into this Agreement, it has not relied on any promises, inducements or representations of the other party that are not explicitly set forth in this written Agreement. This Agreement may not be released, discharged or modified except by an instrument in writing signed by the parties.
9.4. Waiver: No waiver of any breach of any provisions of this Agreement shall constitute a waiver unless made in writing and signed by an authorized representative of the non-breaching party.
9.5. Governing Law and Venue: This Agreement shall be governed by the laws of the State of California, including without limitation those laws applicable to agreements formed and to be performed in the State, but without regard to conflict of law principles. The courts of San Francisco County, California shall have exclusive jurisdiction over any action brought under this Agreement.
9.6. Survival: Each party’s obligations under any provisions set forth in this Agreement related to intellectual property and trade secret rights, confidentiality, publicity and indemnification shall survive the expiration or termination of this Agreement, in addition to those provisions which by their express terms provide therefore.
9.7. Severability: If any provision of this Agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of the remaining provisions shall not be affected thereby.