Terms of Use
Effective as of January 2017
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (referenced herein with “you” or with “your”) AND XAD, INC. (referenced herein as “GroundTruth”). YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS OF USE (referenced herein as the “Agreement”) BECAUSE THEY GOVERN YOUR ACCESS TO AND USE OF THE “LEARNING CENTER” PLATFORM (referenced herein as “Learning Center”). GROUNDTRUTH IS WILLING TO LICENSE TO YOU THE RIGHT TO USE LEARNING CENTER ONLY ON THE CONDITION THAT YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO USE LEARNING CENTER AND YOU ARE INSTRUCTED TO STOP USE OF LEARNING CENTER.
BY ACCESSING, OR USING LEARNING CENTER, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND ITS TERMS AND CONDITIONS, AND THAT YOU AGREE TO BE BOUND LEGALLY BY IT AND ITS TERMS AND CONDITIONS.
1. LICENSE GRANT. Subject to your continued compliance with this Agreement, GroundTruth provides to you a single, revocable, limited, non-exclusive, non-transferable, and non-sublicensable license to access and use Learning Center during the term of this Agreement on your (and a single) personal computer, laptop, mobile phone or other mobile computing device and only for internal business purposes. The content layout, formatting, and features of and online or remote access processes for Learning Center shall be as specified by GroundTruth in its sole discretion. You also acknowledge and agree to the following: (i) GroundTruth has the right to control and direct the means, manner, and method by which Learning Center is provided; (ii) GroundTruth may, from time to time engage independent contractors, consultants, or subcontractors to aid GroundTruth in providing Learning Center or use thereof; and (iii) GroundTruth has the right to provide Learning Center to others.
2. RESTRICTIONS ON USE. All rights not expressly granted under this Agreement are hereby reserved to GroundTruth. Accordingly, you are hereby prohibited from using Learning Center in any manner that is not expressly and unambiguously authorized by this Agreement. You therefore may not modify, reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, disassemble, broadcast, publish, remove or alter any proprietary notices or labels, license, sublicense, sell, mirror, frame, rent, lease, private label, grant a security interest in, create derivative works of, or otherwise exploit Learning Center, or any portion of Learning Center without GroundTruth’s prior written consent except as expressly and unambiguously authorized herein. Moreover, you may not (a) use any “deep link,” “page scrape,” “robot,” “spider,” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of Learning Center or in any way reproduce or circumvent the navigational structure or presentation of Learning Center to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through Learning Center, (b) attempt to gain unauthorized access to any portion or feature of Learning Center or any other systems or networks connected to Learning Center or to any GroundTruth server or to any of the services offered on or through Learning Center, by hacking, password “mining,” or any other illegitimate or prohibited means, (c) probe, scan, or test the vulnerability of Learning Center or any network connected to Learning Center, nor breach the security or authentication measures on Learning Center or any network connected to Learning Center, (d) reverse look-up, trace, or seek to trace any information on any other user of or visitor to Learning Center, (e) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of Learning Center or GroundTruth’s systems or networks or any systems or networks connected to Learning Center, (f) use any device, software, or routine to interfere with the proper working of Learning Center or any transaction conducted on Learning Center, or with any other person’s use of Learning Center, (g) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to GroundTruth on or through Learning Center, or (h) use Learning Center in an unlawful manner.
3. USER OBLIGATIONS. By downloading, accessing, or using Learning Center, you represent and warrant that you will abide by all applicable local, state, national laws and regulations with respect to your use of Learning Center and that you are at least the legal age of majority. In addition, you agree to assume all responsibility concerning your use of Learning Center, including being held responsible for any and all activity occurring through your username and password (and the related account access). You further represent and warrant that (i) you will at all times provide true, accurate, current, and complete information (and updates thereto) when submitting information to GroundTruth through Learning Center; and (ii) you will at all times comply with the terms and conditions of this Agreement. Moreover, by installing, accessing, or using Learning Center, you agree to allow GroundTruth to collect certain information regarding your use of Learning Center (including, without limitation, certain data regarding feature utilization, navigation, and personal information (e.g., name, email, etc.), and further agree to provide GroundTruth reasonable cooperation in connection with operation of or support for Learning Center. You also agree to receive electronic communications from GroundTruth. These electronic communications may include notices concerning or related to Learning Center or GroundTruth’s services. These electronic communications are part of your relationship with GroundTruth and you receive them as part of your use of Learning Center. You therefore hereby agree that any such notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements.
4. ACCOUNT. You may be required to register to use Learning Center. Each registration is for a single user only, unless otherwise expressly agreed upon by GroundTruth. Registration for access to and use of Learning Center may also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by GroundTruth in its sole discretion from time to time. You hereby agree to consider your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of GroundTruth, which may be withheld in its sole discretion. You shall immediately notify GroundTruth if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password. GroundTruth will not be liable for any loss or damage arising from your failure (whether inadvertent or intentional) to comply with these obligations.
5. FEEDBACK. GroundTruth welcomes your feedback and suggestions about GroundTruth’s products or services or with respect to how to improve Learning Center. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to GroundTruth, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to GroundTruth and enable GroundTruth to use such Feedback. In addition, any Feedback received GroundTruth will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license from you for GroundTruth to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist therein, and you hereby waive any claim to the contrary.
6. LINKS TO OTHER SITES. Learning Center may connect to certain third party websites or online networks (collectively, “Third Party Sites”). These Third Party Sites have not necessarily been reviewed by GroundTruth and are owned, controlled and/or maintained solely by third parties over whom GroundTruth exercises no control. Your correspondence or any other dealings with third parties found through any Third Party Site on Learning Center is solely between you and such third party. Accordingly, GroundTruth hereby expressly disclaims and shall not have any liability or responsibility for any Third Party Sites.
7. MOBILE SERVICES. Learning Center offers various tools or display functionality that are available to you via your mobile phone or other mobile computing device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices or in all locations. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices; what restrictions, if any, may be applicable to your use of the Mobile Services; and how much such use will cost you. Nevertheless, all use of Learning Center shall be strictly in accordance with this Agreement.
8. PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use Learning Center in accordance with the terms of this Agreement. Accordingly, you hereby agree that GroundTruth transfers no ownership or intellectual property interest or title in and to Learning Center or any other GroundTruth intellectual property to you or anyone else in connection with your use of Learning Center. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through Learning Center are exclusively owned, controlled, and/or licensed by GroundTruth, Inc. or its licensor(s) or affiliate(s). GROUNDTRUTH LEARNING CENTER, and all other marks identifying the products or services of GroundTruth are proprietary trademarks of GroundTruth, Inc., and any use of such marks, including, without limitation, as domain names, account identifiers, or in connection with any search engine optimization practice(s), without the prior express written permission of GroundTruth is hereby strictly prohibited.
9. CONFIDENTIALITY. You acknowledge and agree that Learning Center contains proprietary trade secrets and confidential or nonpublic information of GroundTruth and/or its licensors (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information of GroundTruth (and/or its licensors) in a manner consistent with the maintenance of GroundTruth’s rights therein, using at least as great a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
10. PRIVACY POLICY. Please see GroundTruth’s Privacy Policy for more details on GroundTruth’s collection and use of such location-based information or personally identifiable information. Your use of Learning Center and the collection of personally identifiable information by and through Learning Center is governed by GroundTruth’s Privacy Policy.
11. DISCLAIMER. LEARNING CENTER IS PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. GROUNDTRUTH HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. GROUNDTRUTH ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT LEARNING CENTER WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR PARTICULAR REQUIREMENTS AND/OR NEEDS. THEREFORE, YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF LEARNING CENTER.
12. LIMITATION OF LIABILITY. YOU ALSO EXPRESSLY ABSOLVE AND RELEASE GROUNDTRUTH FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND GROUNDTRUTH’S CONTROL, INCLUDING, BUT NOT LIMITED TO, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, OR NATURAL DISASTERS, STRIKES, OR OTHER LABOR PROBLEMS, WARS, OR GOVERNMENTAL RESTRICTIONS. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL GROUNDTRUTH BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DEALINGS OR AGREEMENTS BETWEEN YOU AND A THIRD PARTY, THE USE OF LEARNING CENTER, WITH THE DELAY OR INABILITY TO USE LEARNING CENTER, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH LEARNING CENTER, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF GROUNDTRUTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF GROUNDTRUTH FOR ANY REASON WHATSOEVER RELATED TO USE OF LEARNING CENTER SHALL NOT EXCEED $500 (US) OR THE AMOUNT PAID BY YOU TO GROUNDTRUTH (FOR USE OF LEARNING CENTER) DURING THE TWELVE (12) MONTHS PRECEDING ANY CLAIM, WHICHEVER IS GREATER.
13. INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this Agreement, including, without limitation, violations or infringement of GroundTruth’s intellectual property or proprietary rights, may cause irreparable injury to GroundTruth, whereby such injury would not be quantifiable in monetary damages, and GroundTruth would not have an adequate remedy at law. In the event of such injury or potential for such injury you therefore hereby agree that GroundTruth shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.
14. SECURITY & ENFORCEMENT. Any actual or attempted use of Learning Center by you in violation of this Agreement may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. GroundTruth reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of Learning Center (“User Information”) without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through Learning Center. GroundTruth may share any User Information we obtain from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. GroundTruth will also disclose User Information as required by any court order and/or subpoena. In addition, GroundTruth hereby reserves the right in its sole direction to at any time and without notice modify, suspend, terminate, and/or interrupt operation of or access to Learning Center, or any portion thereof, in order to protect Learning Center, GroundTruth intellectual property, GroundTruth, or the business interests of GroundTruth and/or its members and affiliates.
15. GOVERNING LAW. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of New York as applied to agreements entered into and completely performed in the State of New York. You agree to the personal jurisdiction by and venue in any federal or state court in the State of New York, County of New York and waive any objection to such jurisdiction or venue and further to a jury trial in any action. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. Any claim you might have against GroundTruth must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. In any legal proceeding brought by GroundTruth, GroundTruth shall have the right to seek and be awarded all reasonable attorneys’ fees and costs in addition to any other relief, at law or in equity, to which GroundTruth may be entitled. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form. Please print a copy of this Agreement or contact GroundTruth if you wish to receive a printed copy of this Agreement.
16. TERM AND TERMINATION. This Agreement will take (re-take) effect at the time you click “Sign In”, download Learning Center or begin using Learning Center, whichever is earliest. This Agreement will terminate automatically if (i) you fail to comply with any of its terms and conditions; or (ii) cease all use of Learning Center. Termination will be effective without notice. In addition, GroundTruth may in its sole discretion terminate this Agreement upon notice to you for any or no reason. Upon termination of this Agreement, any and all right(s) to use Learning Center shall immediately cease and you must promptly delete or destroy all copies of Learning Center in your possession or control. Sections 2, 3, 6, 9-16, 17, 18, and 20 will survive the termination of this Agreement.
17. WAIVER & SEVERABILITY. GroundTruth’s failure to insist on upon strict performance of any of the terms and conditions of this Agreement by you will not operate as a waiver of any subsequent or other default or failure of performance. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable pursuant to applicable law or court order including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision(s) that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
18. OTHER TERMS AND CONDITIONS. Additional notices, terms, and conditions may apply to access to or use of GroundTruth’s products and services. If there is a conflict between this Agreement and any other notices, terms, or conditions, GroundTruth shall resolve any conflict in good faith in its sole discretion but this Agreement shall generally control with respect to accessing and using Learning Center.
19. MISCELLANEOUS. You hereby agree that (a) this Agreement operates in addition to any terms of use imposed or required by Apple Inc., Google, Inc., Microsoft, Inc. or any other digital download platform from which you download Learning Center (“App Provider Terms”); and (b) the terms of this Agreement supplement and do not alter or amend any such App Provider Terms. No joint venture, partnership, employment, or agency relationship exists between you and GroundTruth as a result of this Agreement or your utilization of Learning Center. Headings are for convenience only. This Agreement and GroundTruth’s Privacy Policy found at https://groundtruthit.wpengine.com/privacy-policy/ represent the entire agreement between you and GroundTruth with respect to use of Learning Center, and hereby supersede all prior and/or contemporaneous communications and proposals, whether electronic, oral, or written between you and GroundTruth. You may not assign, delegate, or transfer any rights under this Agreement without the prior express written consent of GroundTruth, which may be withheld in GroundTruth’s sole discretion. GroundTruth may update these terms and conditions at any time by posting or sending you a revised version of the Agreement, and may do so without advance notice to you. Accordingly, please review the terms and conditions found at this location on a periodic basis. Each time you access Learning Center, you agree to be bound by the Agreement in effect at the time you access Learning Center. If you do not agree to the revised terms, do not use Learning Center.