TERMS OF USE – Aperian Global Learning Portal*

*Exact terms may vary for some client accounts. If you are unsure, please contact your HR representative or continue and view your company’s specific Terms of Use from the footer on the portal welcome page. By continuing to use this tool you signal your acknowledgement of the applicable terms.

Effective Date:  1 October 2011

A.   Terms

Except to the extent governed by a separate written agreement with Aperian Global, Inc., this agreement (“Agreement”) provides the terms and conditions of access and use of the software, services and content (collectively, the “Software”) provided by Aperian Global through this site (the “Site”).  All copies of the Software made accessible through the Site are licensed, not sold.

B.   License

Subject to the terms and conditions of this Agreement, Aperian Global grants to you a limited, non-exclusive, non-transferable, revocable, personal, right and license to access and use the Site and Software as made available by Aperian Global on the Site and only for its intended purpose and for no other purpose. 

You acknowledge and understand that certain areas, features and services of the Site are restricted to paid subscribers and/or registered users.  Unless you are paid subscriber and/or registered user, your license to access and use of the Site and Software may be restricted and limited to only those areas, features and services provided at no charge.  All rights not herein expressly granted are hereby expressly reserved to Aperian Global and its affiliates and licensors.  Except for the limited rights of access and use granted hereunder, no other right, title or interest to the Software or any intellectual property right pertaining thereto is granted under this Agreement.

C.  Registration/Subscription

To access and use the areas, features and services of the Site and Software restricted to paid subscribers and/or registered users, you must enter into a prepaid Subscription Agreement and/or register online providing a unique user name and password and other information (“Registration Information”), as applicable.  When entering into a prepaid Subscription Agreement and submitting Registration Information, you agree to:

  1. Provide a user name that is personal to you and not a known user name of another person;
  2. Provide current, accurate and complete Registration Information;
  3. Keep your Registration Information current and accurate;
  4. Keep your password to yourself and not share it with anyone else;
  5. Accept full responsibility for any and all use of your account;
  6. Immediately notify us of any disclosure or use of your user name or password that is not authorized by this Agreement and to change your password to stop any such further use;
  7. NOT register for more than one account;
  8. NOT create accounts by any automated means, which are hereby expressly prohibited;
  9. NOT use an account, the Site or the Software for any purpose other than the purpose for which it was created and intended to be used by Aperian Global;
  10. NOT use an account, the Site or the Software for any unlawful purpose; and
  11. NOT use an account, the Site or the Software for any commercial purpose except as may be expressly permitted by this Agreement.

D.  Privacy Policy

We respect the privacy of our users and members.  Please see our Privacy Policy to learn more about our privacy policy and practices.  By registering and accessing or using the Site and Software, you consent to the use of cookies and the transfer and processing of your personal information in the United States by us or our service providers and you agree to the use of your personal information and email address to contact you regarding the use of the Site and the Software, and their features and services.

E.  Modification

Aperian Global reserves the right to change the terms and conditions of this Agreement at any time.  Aperian Global will provide notice on the Site of a change to this Agreement and the effective date.  You are responsible for reviewing the Site for change notices and the revised terms and conditions of this Agreement.  Your continued use of the Software constitutes your agreement to the effective terms and conditions.

F.  Confidentiality

You agree that you will keep your personal password confidential and not allow any other person to use your personal username and password to access the Software. You agree to immediately notify Aperian Global of any suspected disclosure of your personal password to an unauthorized person.

G.   Third Party Sites, Contents and Transactions

The Site may contain links (“Third Party Links”) to third party web sites ("Third Party Sites") and content or materials originating from third parties ("Third Party Content").  Aperian Global is not responsible for Third Party Links, Third Party Sites or Third Party Content.  Except as expressly stated by Aperian Global, no sponsorship, affiliation or endorsement of Third Party Links, Third Party Sites or Third Party Content  is intended or implied.

In addition, Aperian Global may run third party advertisements and promotions on the Site for third party services and/or products.  If you enter into correspondence or engage in commercial transactions with third parties in connection with your use of the Site, such activity is solely between you and the applicable third party.  Any terms, conditions, warranties or representations related to such activity are solely between you and the relevant third party.  Aperian Global shall have no liability, obligation or responsibility for the result of any third party activity or the result of third-party advertisements on the Site.  You acknowledge and agree that Aperian Global is not responsible or liable for any action or inaction of any third party to a transaction, including, but not limited, any third party’s failure to perform, to pay any amounts due, or to deliver any merchandise or services as promised, or for any claim or liability arising from or related to any third-party transaction.

H.  Restrictions

You agree not to directly or indirectly:

(i) redistribute, encumber, sell, rent, lease, lend, sub-lease, sublicense or otherwise transfer the Software or the right to access and use the Software, in whole or in part, to any third party without the express written consent of Aperian Global;

(ii) remove or obscure any copyright, trademark and other proprietary rights notices, legends, symbols or labels;

(iii) alter, modify, decompile, disassemble, create any derivative works of the Software, including customization, translation or localization, or reverse engineer or otherwise attempt to derive the source code for the Software (except as expressly permitted by local law);

(iv) utilize the Software in connection with any service bureau or time-sharing system or to provide processing services for any third party;

(v) allow any other person to access and use this Software via a LAN, WAN or other network of computers;

(vi) use the Software or its aggregated data for the development of or in connection with a software application or service that has the same or substantially similar features and/or function to the Software; and

(vii) use the Site and/or Software for any unlawful purpose.

I.    Copyright

The Site and the Software and its databases and compilations of aggregated data, all copies thereof, and associated trademarks are protected under United States Copyright Law, International Treaty, trade secret, trademark and other applicable laws.  

Except as permitted by features of the Site and/or Software for printing or downloading limited copies of the Software for personal, internal use and reference, you agree not to copy, reproduce, publicly display, publicly distribute, transmit or otherwise transfer, the content of the Site and/or Software without the express written consent of Aperian Global.

J.    Submissions. 

Any communication, information, material or media (including but not limited to user suggestions, ideas, questions, concepts, text, data, audio, images and/or video) that is submitted to the Site (each a “Submission”) is non-confidential.  By making a Submission, you hereby grant to APERIAN GLOBAL and its successor and assigns an unrestricted, royalty-free, irrevocable, perpetual, worldwide, non-exclusive license (with right of sub-license) to dispose, reproduce, modify, edit, publish, create derivative works from, and use, publicly display, publicly distribute and transmit the Submission and all derivative works thereof, in whole or in part, alone or together with any other works, in any form, media or technology now known or later developed,  and exploit any ideas, concepts, methods or processes disclosed therein for commercial purposes, including but not limited to, the sale, advertising promotion and/or marketing of goods and services, all without further permissions, notice, or compensation of any kind to you or others, to the full extent permitted by law.   You agree that APERIAN GLOBAL shall have no duty or obligation to attribute authorship to you (or comply with other “rights of publicity” demands) and you hereby waive and agree not to enforce APERIAN GLOBAL and its successors and assigns from any and all claims arising from or related to any rights of publicity or other moral rights in the Submission.

Responsibility for User Content and User Interactions

It is the sole responsibility of each user to ensure that he or she owns or has all rights, title and permissions necessary to upload, post, or publish a Submission to the Site or transmit a Submission via the Site. By uploading, storing, posting, or publishing a Submission to the Site, or transmitting a Submission via the Site, you represent and warrant that the Submission is not offensive, obscene or defamatory, that you have all rights, title and permissions necessary to upload, post, or publish a Submission to the Site or transmit a Submission via the Site, to grant the license stated hereinabove, and that APERIAN GLOBAL's use of the Submission (as submitted), in whole or in part, will not violate the rights of any third party.  You understand and acknowledge that APERIAN GLOBAL is under no obligation to accept, respond to or use any Submission.

Aperian Global does not regularly and systematically monitor user Submissions posted on or transmitted via the Site.  Aperian Global does not guarantee the accuracy, integrity or quality of any Submission.  APERIAN GLOBAL ASSUMES NO RESPONSIBILITY OR LIABILITY OF ANY KIND ARISING FROM OR RELATED TO ANY SUBMISSION OR FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.

K.   COPYRIGHT COMPLAINTS – “DMCA” NOTICE

If you believe that any content or material on the site or software infringes any copyright owned or controlled by you, please send written notice to our Designated Copyright Agent in accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”):

Designated Agent for Receiving Notification of Claimed Infringement:

 

 

 

Aperian Global Copyright Agent

1 Kaiser Plaza, Suite 785
Oakland, CA  94612

 

 

To be valid under the DMCA, your notice must be in writing and include the following information:

 

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

 

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

 

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

 

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

 

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

This information is neither intended nor should not be construed as legal advice. For further details on the information required for valid notifications under the DMCA, see 17 U.S.C. 512(c)(3).

 

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE CONTENT OR MATERIAL IS INFRINGING YOUR COPYRIGHTS, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES INCURRED BY US, ANY COPYRIGHT OWNER, OR ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF RELIANCE UPON YOUR MISREPRESENTATION.

 

This information is provided exclusively for notifying Aperian Global that content or material(s) on the site or transmitted via the site may be in violation of your copyright(s).  Aperian Global does not respond to other inquiries using this process.  See “Contact Us” below for all such other inquiries.

 

INFRINGER POLICY

 

In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is the policy of Aperian Global to terminate (at it’s sole discretion and without prior notice) users or members who are deemed or suspected by Aperian Global to be repeat infringers.  Aperian Global may also at its sole discretion limit access to the site and/or terminate access and use by any user or member who infringes any intellectual property rights of others, whether or not there is any repeat infringement.

L.  Ownership

You acknowledge and agree that Aperian Global and its licensors (as applicable) are and shall remain the sole owner of all rights, title and interest in and to the Site and Software, all data created and/or collected through the use of the Site and/or Software, all derivatives thereof and all intellectual property rights related or pertaining to the aforesaid, including without limitation, all copyrights and inventions (whether patentable nor not), even if you should provide data, suggestions, ideas, concepts, inventions, works of authorship, improvements or other intellectual property as a result of your use of the Site and/or Software. You further agree that you will not make any claim for, and do hereby expressly waive and release any right to, an accounting, compensation or other consideration of any kind arising from or related to any participation by you in the use, modification or improvement of the Site and/or Software.

M.     Disclaimer of Warranties

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE, SOFTWARE, DATA AND INFORMATION ACCESSIBLE THROUGH THE USE OF THE SITE AND/OR SOFTWARE ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, APERIAN GLOBAL EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR REQUIREMENT, TITLE AND NON-INFRINGEMENT.  Some states may not permit the disclaimer/limitation of implied warranties, so the above disclaimer of implied warranties may not apply to you.  Check your local laws.  You may have other rights which vary by jurisdiction.

Aperian Global does not warrant that the Site and Software will be accessible and fully operable at all times, that the Site and Software is accurate, error free, complete, reliable or free from harmful elements, regardless of Aperian Global’s commercial reasonable efforts to make it so.

N.   Limitation of Liability

EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL APERIAN GLOBAL, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE AND/OR ITS CONTENTS BE LIABLE TO YOU FOR ANY PERSONAL INJURY OR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF DATA OR PROPERTY) ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE USE, RELIANCE ON OR TRANSFER OF ANY PROPERTY, SOFTWARE, INFORMATION OR DATA PROVIDED OR MADE ACCESSIBLE UNDER THIS AGREEMENT, EVEN IF APERIAN GLOBAL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH INJURY OR DAMAGES.  IN THE EVENT ANY LIABILITY IS ASSESSED UNDER APPLICABLE LAW, THE PARTIES AGREE THAT THE TOTAL LIABILITY OF APERIAN GLOBAL AND ITS AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE PARTY FOR WHOM THE BENEFIT OF LIABILITY IS ASSESSED FOR THE RIGHTS AND LICENSES GRANTED UNDER THIS AGREEMENT.

O.  Indemnity

You agree to indemnify and hold harmless Aperian Global, its officers, directors, employees, representatives, successors and assigns from and against any claims, actions, demands, liabilities, settlements and damages including without limitation, reasonable attorneys’ fees and costs, arising from or related to your violation of this Agreement.

P.   U.S. Government Restricted Rights

If the Software is being accessed for use by or on behalf of the U.S. Government or by a U.S. Government contractor (at any tier), then the Government’s rights in the Software and governing documentation will be only as set forth in this Agreement, in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions), as applicable. Unpublished rights are reserved under the Copyright laws of the United States. Aperian Global, Inc., 1 Kaiser Plaza, Suite 785, Oakland, CA 94612.

Q.  End Users Outside the U.S.

If you are located outside the jurisdiction of the U.S., then the provisions of this Section shall apply to you: (i) this Agreement and all related documentation shall be in the English language (LES PARTIES AUX PRESENTES CONFIRMENT LEUR VOLONTE QUE CETTE CONVENTION DE MEME QUE TOUS LES DOCUMENTS Y COMPRIS TOUT AVIS QUI S'Y RATTACHE, SOIENT REDIGES EN LANGUE ANGLAISE); and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this Agreement and license valid and enforceable.

R.   Export/Import

You agree to comply with all export and import laws and restrictions and regulations of the United States and foreign countries, and not to export, re-export or import the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. Neither the Software nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) to Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria or any other country subject to a U.S. trade sanctions or embargo, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and/or the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List or Entity List. By using the Software, Licensee agrees to the foregoing and represents and warrants that it is not located within an embargoed jurisdiction and is otherwise in compliance with these conditions.

S.  Termination/Survival

a.  For registered users without a prepaid subscription agreement, Aperian Global reserves the right to suspend and/or terminate access and use of the Site, the Software and this Agreement, in whole or in part, at any time with or without notice.

b.  For users with a prepaid subscription, Aperian Global may immediately suspend your access and use of the Site and/or the Software upon discovery of a material breach by you (or your employer, if applicable) and terminate your access and use of the Site, the Software and this Agreement concurrently with the termination of the subscription agreement (in accordance with its terms).  The provisions of Sections I, J, K, L, M and R shall survive the termination of this Agreement.

T.   General

Governing law:  This Agreement is will be governed by the laws of the State of California without application of conflict of laws principles.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement is hereby expressly excluded.  You agree to the submit to the exclusive jurisdiction of the courts located within the county of San Francisco, California to resolve any legal matter arising from or related to this Agreement and without resort to any class action.

Severability: Should any provision of this Agreement be deemed invalid or unenforceable, the remaining portions shall remain valid and enforceable in accordance with the original intentions of the parties.  

Attorneys’ Fees:  The prevailing party in any action or proceeding to enforce the terms of this Agreement shall be entitled to an award of its reasonable attorneys’ fees and costs.   

Entire Agreement:  This Agreement contains the complete agreement between the parties with respect to the subject matter hereof. With the exception of any applicable terms of subscription, all previous and collateral agreements, representations, promises, and conditions relating to the subject matter of this Agreement are superseded by this Agreement.  In the event of any conflict between this Agreement and any applicable subscription, the terms and conditions of this Agreement shall govern the access to and use of this Software.  

Amendment:  This Agreement may not be modified or amended except in writing signed by a duly authorized officer of Aperian Global.  

Waiver:  No provision of this Agreement may be waived except in writing signed by the party to be charged.  No waiver of any default or violation shall constitute a waiver of any subsequent default or violation of the same or other provision.  Notices:  All notices and approvals given under this Agreement must be in writing and delivered in person, or by first class mail, express mail, facsimile with confirmation of transmission, or email with return acknowledgment.  Notice provided in accordance with this section will be deemed given when received.  

Force Majeure:  Aperian Global shall be excused from delays in performance or its failure to perform hereunder to the extent that such delays or failures result from causes beyond its reasonable control.

Binding Effect:  This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.  

Transfer:  This Agreement and the rights granted hereunder may not be assigned or otherwise transferred without the express written consent of Aperian Global.  

Headings:  The section headings of this Agreement are provided for purposes of convenience only and shall be of no effect in the interpretation or meaning of any provision. 

Electronic Signatures and Records: You and Aperian Global agree to the use of electronic signatures, communications, notices and records to enter into and carry out this Agreement and each party hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted by applicable law. 

 

26769-00001\iManage\3751095.2