Version 2.1, effective February 5, 2021
THIS IS A BINDING CONTRACT; PLEASE READ IT CAREFULLY.
BY USING THE WIN SERVICES, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS HEREIN (THE “TERMS”). IF YOU ARE ACCEPTING THE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND THAT PERSON, COMPANY, OR ENTITY. IF YOU DO NOT AGREE TO THE TERMS, YOU ARE NOT PERMITTED TO, AND THEREFORE YOU CANNOT, ACCESS OR USE THE SERVICES. WE MAY UPDATE THE TERMS FROM TIME TO TIME BY POSTING A NEW VERSION ON THIS WEBSITE. YOUR CONTINUED USE OF THE SERVICES AFTER WE MAKE SUCH UPDATE CONSTITUTES YOUR AGREEMENT TO THE UPDATED TERMS. IF YOU DO NOT AGREE TO THE UPDATED TERMS, THEN YOU MUST CEASE USING THE SERVICES IMMEDIATELY.
In addition to the other defined terms in herein, the following definitions shall apply:
“Applicable Laws” means all federal, state, and local laws, rules, and regulations applicable to a party’s performance of its obligations under the Terms.
“Authorized User” means an individual authorized by Licensee to access the Services solely in accordance with the Terms and any other applicable written agreement between WIN and Licensee.
“Licensee” means the individual or entity, entering into this contract, which is an authorized licensee of WIN Services pursuant to the Terms and any other applicable written agreement with WIN.
“Services” means the provision by WIN of products, services, software, applications, systems, and websites.
“Update” is defined as a Service correction, fix, minor enhancement, modification or patch to the initially delivered version of the Services which is made generally available.
“Upgrade” is defined as a new version of the Services which includes new or significantly increased functionality and for which WIN charges a new license fee.
“You” or “Your” means the Licensee or Authorized User who accepts the Terms to access and use the Services.
“WIN” means WIN Learning and its subsidiaries, successors and assigns. WIN may also be referred to as “Our”, “We”, or “Us”.
- Grant of Limited Use License. By using the WIN Services, you accept and agree to the Terms. WIN hereby grants You a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to access and use the Services solely as described in Section 2 below for the Term. This license only permits You to use the Services remotely through the Internet for Your authorized use, in accordance with the Terms at all times.
- Ownership. All right, title, and interest in and to the Services (including, without limitation, all intellectual property rights related thereto) are owned by, or licensed to, WIN. Intellectual property relating to the Services (including, without limitation, all patent, trademark, copyright, trade secrets, and moral rights related thereto) is protected by Applicable Laws. The Services may contain materials licensed by third parties, and the licensors of those materials may enforce their rights against You in the event of any violation of the Terms. .
- Prohibited Use and Transfer. You may not, in whole or in part, (a) copy, reproduce, translate, reverse engineer, attempt to derive the source code of, modify, disassemble, decompile, or create derivative works based on, the Services, (b) remove any proprietary notices or labels on the Services; (c) access the Services for the purposes of creating a product or service, whether or not such product or service is competitive with the WIN Services; or (d) rent, lease, sublicense or transfer the Services or individual user credentials issued to You by WIN, to any third parties. For WIN Services which are controlled by the means of user credentials, only one individual is permitted to access or use the Services for each unique user credential issued to You by WIN or its Licensees. Incidences of multiple individuals accessing the Services with one user credential violate the Terms and may result in immediate termination of the Terms and Your right to access and use the Services by WIN. Failure to comply with the restrictions and limitations contained in this Section 4 may also subject You to civil and/or criminal liability for violating Applicable Laws.
- Charges and License Fees. The amounts payable for the Services (the “Fees”), if any, shall be set forth in a separate agreement, such as a purchase order, between WIN and Licensee (an “Order”). Except as otherwise explicitly provided for in the Terms or the applicable Order, the Fees are non-cancelable and non-refundable. If You wish to increase Your permissible level of use, you must notify WIN and pay any applicable additional Fees. If any authority imposes a duty, tax, levy or fee, excluding those based on WIN’s net income, upon Licensee’s purchase and use of the Services (the “Taxes”), then as between Licensee and WIN, Licensee agrees to pay the Taxes or provide WIN with a valid exemption certificate, whether or not WIN invoices Licensee for such Taxes.
- Term and Termination. The Terms shall become effective on the earlier of the date on which the Order is effective or the date on which You first access the Services, and will continue until the end date listed in the applicable Order, unless earlier terminated in accordance with the Terms (the “Term”). Unless otherwise provided in an Order, WIN may terminate the Terms upon ten (10) days prior written notice to You. You may only terminate the Terms in the event WIN is in material breach of a provision of the Terms and such material breach remains uncured for a period of at least thirty (30) days following written notice of the material breach to WIN. Upon termination or expiration of the Terms: (a) The license granted hereunder shall immediately be revoked and You shall immediately cease accessing and using the Services; (b) any outstanding Fees shall be promptly paid by You to WIN; and (c) any provisions of the Terms that, by their nature it is reasonable to believe survive termination or expiration, shall so survive such termination or expiration.
- Representations and Warranties. Each of You and WIN represent and warrant the following: (a) that it is duly authorized to enter into the Terms and agreeing to the Terms does not constitute a violation of any agreements it may have with third parties; and (b) its performance under the Terms will at all times comply with Applicable Laws. EXCEPT AS OTHERWISE PROVIDED FOR IN THE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS” BASIS. WIN AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, AS TO THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE WARRANTING THE ACCURACY OF DATA, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE.
- Indemnification. WIN will indemnify, defend, and hold You harmless from and against damages, losses, fines, and penalties (collectively, “Losses”) that result from any third party claims (“Claims”) alleging that the Services, when used as permitted hereunder by You, directly infringe any third party US intellectual property right. In the event the Services become enjoined, or in WIN’s reasonable opinion are likely to become enjoined, then WIN will do one of the following, in its sole discretion and as Your exclusive remedy for a Claim described herein: (a) procure for You the right to continue using the Services; (b) modify or replace the Services such that they are non-infringing but functionally equivalent; or (c) terminate the Terms and refund on a pro-rata basis any prepaid Fees for Services that would have been provided after the termination date. Notwithstanding anything to the contrary, WIN shall have no obligation to indemnify pursuant to this Section 8 where the infringing matter is (x) not provided by WIN; (y) results from use of the WIN Services in combination with Third Party Software (defined below); or (z) results from modifications made to the WIN Services by any individual or entity other than WIN.
- Limitations of Liability. IN NO EVENT WILL WIN OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOSS OF, OR DAMAGE TO, DATA, LOST PROFITS, LOST REVENUE, OR LOST SAVINGS, EVEN IF LICENSEES OR AUTHORIZED USERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. ADDITIONALLY, IN NO EVENT SHALL WIN’S LIABILITY TO YOU EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE TOTAL FEES PAID BY YOU TO WIN DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
- Governing Law and General Provisions. The Terms will be governed by the laws of the State of Tennessee, U.S.A., excluding the application of its conflicts of law rules. Any dispute relating to the Terms shall be brought in, and decided by, a state or federal court of competent jurisdiction located in Knoxville, Tennessee, U.S.A. You hereby agree to submit to the personal and exclusive jurisdiction of such courts. The Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of the Terms is found void and unenforceable, the balance of the Terms shall remain valid and enforceable according to its terms. You agree that the Services will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act, or any other export laws, restrictions, or regulations.
- Notice to U.S. Federal Government End Users. The Services and related documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clauses to the contrary in any agreement into which the Terms may be incorporated, the government end user will acquire the Services and related documentation with only those rights set forth in the Terms. Use of either the Services or related documentation or both constitutes agreement by the government that the Services and related documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
- Other Licensed or Installed Software. The WIN medium upon or by which You receive or access the Services may contain other Third Party Software. “Third Party Software” is software which is owned or licensed by third parties of which WIN does not have ownership or control(e.g. other copyrighted and/or licensed software, General Public License software, “freeware,” etc.). For Third Party Software, You acknowledge and agree that: (1) Your access, receipt, installing, copying and/or use of Third Party Software shall be governed solely by the terms and conditions of the Third Party Software, as such Third Party Software may be made available to You from time to time and/or may accompany or be included with the such Third Party Software; (2) Third Party Software terms and conditions shall not apply in any respect to the WIN Services; (3) WIN makes no representations or warranties concerning the functionality, features, security, operation or results of Third Party Software; (4) WIN shall have no liability for the functionality, features, security, operation, or results of, and from, Your use of Third Party Software; and (5) the WIN Services shall be governed solely by the Terms and applicable WIN copyright(s) and notices as such may be made generally available on our website or provided to you from time to time.
- Notices. Any notices required to be made under the Terms shall (a) if by WIN, be sent to You at the email address and/or physical address on record with WIN at that time; and (b) if by You, be sent to WIN at the address below with a copy emailed to email@example.com.
For future reference, You may obtain a copy of the Terms by visiting www.winlearning.com/terms-of-use.
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WIN Learning, Inc.,
1000 Waterford Place
Kingston, TN 37763
WIN is a registered trademark of WIN Learning