Subscription and License Agreement
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING ON THE CHECK BOX NEXT TO THE STATEMENT “I ACCEPT THE TERMS AND CONDITIONS,” YOU AGREE TO THESE TERMS OF SERVICE.
These Terms of Service, along with the policies and documents described below, are a legally binding agreement (this “Agreement”) between EXPAND, LLC, an Ohio limited liability company (“Expand”) and an individual end user of Expand’s System, as defined below (“You”). Expand provides ExpandShare, an online learning tool used to provide training content to users via a web, iOS or Android app that allows users to create and edit online training, assign it to groups of users, view reports and track progress. (“ExpandShare”). You agree that when you access or use ExpandShare, You will do so subject to this Agreement. DO NOT ACCESS OR USE EXPANDSHARE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THIS AGREEMENT.
This Agreement is effective as of the date You click “I ACCEPT THE TERMS AND CONDITIONS” (the “Effective Date”).
1. USE OF EXPANDSHARE IN GENERAL.
1.1 Eligibility. You must by 18 years old or older to use ExpandShare.
1.2 ExpandShare Subscription. During the Term (as defined in Section 9 below), You may access and use ExpandShare pursuant to Expand’s policies posted on its website at http://www.expandshare.com, as such policies may be updated from time to time. You may reproduce and use Expand's standard user manual related to use of ExpandShare (the “Documentation”) solely as necessary to support use of ExpandShare.
1.3 ExpandShare Revisions. Expand may revise the features and functions of ExpandShare at any time.
2. THE APP.
2.1 License. During the Term and subject to the terms and conditions of this Agreement, Expand hereby grants You a nonexclusive, non-transferable license to reproduce and use one copy of the App (as defined below) on your mobile device, solely as a component of ExpandShare, provided You comply with the restrictions set forth below in Section 2.1 (Restrictions on Software Rights). The license in the preceding sentence does not include use by any third party, and You will not permit any such use. (The “App” means Expand’s downloadable software known as ExpandShare and ExpandShare Roadmap. The App is a component of ExpandShare and is included in references thereto, except in this Section 2 and anywhere else addressed separately.)
2.2 Restrictions on Software Rights. Copies of the App created or transferred pursuant to this Agreement are licensed, not sold, and You receive no title to or ownership of any copy or of the App itself. Furthermore, You receive no rights to the App other than those specifically granted in Section 2.1 (License) above. Without limiting the generality of the foregoing, You will not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the App; (b) use the App in any way forbidden by Section 4.1 (Acceptable Use) below; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the App’s source code.
3. YOUR CONTENT AND PRIVACY.
3.1 Permission from You. You grant Expand permission to access, process and otherwise use Your Content (as defined below) in order to provide Expand’s products and/or services to You, to track and analyze Your use of ExpandShare, and make Your Content available to You. To the extent that You have intellectual property rights in Your Content, You grant Expand a world-wide, non-exclusive, royalty-free license to use Your Content for the purposes outlined in this Agreement. You agree that Your Content is not any person’s or entity’s confidential information, including Yours. (“Content” means text, images, photos, audio or video files, and other forms of data or communication. “Your Content” means Content submitted or transmitted by You.)
3.2 Rights in Your Content. You represent and warrant that You own Your Content and that submitting or transmitting Your Content to or through ExpandShare will not violate the rights of any third party, including intellectual property, privacy or publicity rights. Expand is under no obligation to review or screen Your or other Expand users’ Content. If You believe that another user has violated any of Your intellectual property rights, contact the Expand Designated DMCA Agent at expandshare.com/DMCA (“DMCA Policy”).
3.4 Risk of Exposure. YOU UNDERSTAND AND AGREE THAT SHARING CONTENT ONLINE INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE AND THAT, IN SUBMITTING YOUR CONTENT TO OR TRANSMITTING IT THROUGH EXPANDSHARE, YOU ASSUME THESE RISKS. Expand offers no representation, warranty, or guarantee that Your Content will not be exposed or disclosed through ExpandShare or through errors or the actions of third parties.
3.5 Accuracy. Expand has no responsibility or liability for the accuracy of any Content submitted to or transmitted through ExpandShare by You or another user, including without limitation Your Content.
3.6 Right to Retain, Delete or Suspend Access. You agree that You will not rely on ExpandShare for backup or storage of Your Content. Expand may retain Your Content even if You are no longer using ExpandShare but is not required to provide copies of Your Content to You. Expand may permanently delete or erase Your Content or suspend Your access to Your Content through ExpandShare at any time and for any reason.
3.7 Aggregate & Anonymized Data. Expand may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Your Content with personally identifiable information removed.)
4. YOUR RESPONSIBILITIES & RESTRICTIONS.
4.1 Acceptable Use. You agree to comply with the Expand’s acceptable use policy currently posted at expandshare.com/AUP, as such policy may change from time to time (the “AUP”). In addition, you will not: (a) provide ExpandShare passwords or other log-in information to any third party; (b) share non-public ExpandShare features or Content with any third party; or (c) access ExpandShare in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of ExpandShare, or to copy any ideas, features, functions or graphics of ExpandShare. If Expand suspects that You have violated the requirements of this Section 4.1, Expand may suspend Your access to ExpandShare without advanced notice, in addition to other remedies Expand may have. Neither this Agreement nor the AUP requires or obligates Expand to take any action against You or any other ExpandShare user or other third party for violating this Agreement or the AUP, but Expand is free to take any such action it sees fit.
4.2 Unauthorized Access. You agree to take reasonable steps to prevent unauthorized access to ExpandShare, including by protecting Your passwords and other log-in information. You will notify Expand immediately if You know of or suspect unauthorized use of ExpandShare or breach of its security.
4.3 Compliance with Laws. In using ExpandShare, You will comply with all applicable laws, including laws governing the protection of personally identifiable information and other laws applicable to the protection of Your Content.
4.4 ExpandShare Access. You are responsible and liable for: (a) Your use of ExpandShare, including unauthorized conduct and conduct that would violate the AUP or the requirements of this Agreement; and (b) any use of ExpandShare through Your account or passwords, whether authorized or not.
4.5 Communications from Expand. You consent to receive email and/or text messages from Expand in connection with Your use of ExpandShare. Standard text messaging charges required by Your mobile carrier will apply to text messages we send You. You may “unsubscribe” to such messages by following the opt out procedures identified in the email or message.
5. INTELLECTUAL PROPERTY & FEEDBACK.
5.1 Intellectual Property Rights in ExpandShare. Expand retains all right, title, and interest in and to ExpandShare, including without limitation the App and all other all software used to provide ExpandShare and all graphics, user interfaces, logos, trademarks reproduced through ExpandShare, as well as all Content other than Your Content. This Agreement does not grant You any intellectual property license or rights in or to ExpandShare or any of its components, except to the limited extent that this Agreement specifically sets forth Your license rights to the App or the Documentation. You recognize that ExpandShare and its components are protected by copyright and other laws.
5.2 Feedback. Expand has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that You provide to Expand, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Expand’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting You. You hereby grant Expand a perpetual, irrevocable right and license to exploit Feedback in any and every way. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Expand’s products or services.)
6.1 Warranty Disclaimers. YOU AGREE THAT YOU ACCEPT EXPANDSHARE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) EXPAND HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) EXPAND DOES NOT REPRESENT OR WARRANT THAT EXPANDSHARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (c) EXPAND DOES NOT REPRESENT OR WARRANT THAT EXPANDSHARE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR CONTENT WILL REMAIN PRIVATE OR SECURE; AND (d) EXPAND DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS OR SERVICES PROVIDED BY OTHER USERS OF EXPANDSHARE OR OTHER THIRD PARTIES.
6.2 Interactions with Other Users. You agree that You are solely responsible for your transactions or other interactions, either through ExpandShare or through other means of communication, with other users of ExpandShare. You acknowledge that that Expand has no liability for any such interactions. Expand may monitor or become involved in disputes between You and other users of ExpandShare but has no obligation to do so.
6.3 Third Party Sites and Content. You understand that ExpandShare may contain or send You links to third party websites, applications or features not owned or controlled by Expand (“Third Party Sites”), and that links to Third Party Sites may also appear in Content available to You through ExpandShare. ExpandShare may also enable interactions between ExpandShare and a Third Party Site through applications that connect ExpandShare, or your profile on ExpandShare, with a Third Party Site. Through Third Party Sites you may be able to access Content from third parties that Expand does not control and/or share Your Content with others. YOU ACCESS THIRD PARTY SITES ENTIRELY AT YOUR OWN RISK, AND EXPAND WILL HAVE NO LIABILITY FOR YOUR USE OF OR ACCESS TO THIRD PARTY SITES AND/OR THIRD PARTY CONTENT.)
6.4 Internet Delays. ExpandShare may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. EXPAND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
.You agree to defend, indemnify, and hold harmless Expand and the Expand Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging: (a) infringement or violation of third party intellectual property, privacy or publicity rights by Content submitted to or transmitted through ExpandShare from Your account, including without limitation by Your Content; and (b) claims that use of ExpandShare through Your account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Your obligations set forth in this Section 7 include retention and payment of attorneys and payment of court costs, as well as settlement at Your expense and payment of judgments. Expand will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Expand Associates” are Expand’s officers, managers, members, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
8.LIMITATION OF LIABILITY.
8.1 Dollar Cap. EXPAND’S TOTAL LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORT, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL FEES PAID TO EXPAND BY YOU IN RESPECT OF THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
8.2 Exclusion of Consequential Damages. IN NO EVENT WILL EXPAND BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF EXPAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF EXPAND IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 8, Expand’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Expand’s liability limits and other rights set forth in this Section 8 apply likewise to Expand’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
9. TERM & TERMINATION.
9.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date (as defined at the beginning of this Agreement) and continue for an initial term of twelve (12) months, or such other period as agreed to in writing by You and Expand. Thereafter, this Agreement will continue on a month-to-month basis until terminated by either party on thirty (30) days advance notice.
9.2 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party:
(i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within ten (10) days of written notice by the other party specifying the amounts owed;
(ii) in the case of Expand, any breach by You of Expand’s Acceptable Use Policy or DMCA Policy;
(iii) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within thirty (30) days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach; or
(iv) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within thirty (30) days of commencement.
9.3 Effects of Termination. Upon termination of this Agreement, (i) the licenses granted in Section 2.1 (License) will terminate, and You will cease all use of ExpandShare, (ii) Expand will immediately terminate access to ExpandShare by You and Your users, (iii) You shall immediately pay to Expand any amounts payable or accrued but not yet payable to Expand. The following provisions will survive termination of this Agreement: Sections 5 (Intellectual Property & Feedback), 6 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), and 10 (Miscellaneous); and any other provision of this Agreement that must survive termination to fulfill its essential purpose.
10.1 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment or agency relationship exists between You and Expand as a result of this Agreement or the use of ExpandShare.
10.2 Notices. Expand may give notice to You by means of a general notice on the ExpandShare website, e-mail to Your e-mail address on record in Expand’s account information, or by written communication sent by first class mail to Your address on record in Expand’s account information, and such notices will be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail) or 24 hours after sending (if sent by e-mail). You may give notice pursuant to this Agreement to Expand by e-mail to email@example.com, and such notice will be deemed to have been given upon the expiration of 72 hours after it is sent.
10.3 Assignment & Successors. You may not assign this Agreement or any of Your rights or obligations under this Agreement without Expand’s express written consent. Except to the extent forbidden in this Section 10.3, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
10.4 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
10.5 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. The failure of Expand to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Expand in writing.
10.6 Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Ohio, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal courts of the Northern District of Ohio, Eastern Division, and state courts of Summit County, Ohio. This Section 10.6govern all claims arising out of or related to this Agreement, including without limitation tort claims.
10.8 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
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