Brainshark Inc. ("Brainshark") requires that all persons visiting the myBrainshark Website (the "Website") read, agree to, and abide by the following terms and conditions ("Terms of Use") that govern the general use of the Website. These Terms of Use may be in addition to the terms and conditions of a Learning Provider Agreement or other separate agreements, if applicable, between you and Brainshark governing your use of the Website. In the event of a conflict between the terms of such separate agreements and these Terms of Use, the separate agreement shall govern with respect to the subject matter of such conflicting terms. The date on which these Terms of Use was last updated was September 9, 2009.
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License Grants.
Subject to the terms and restrictions herein, Brainshark hereby grants you a non-exclusive, non-transferable, non-sublicensable license to access and use the Website, including the software proprietary to, or licensed by, Brainshark (in object code format only) (the "Software"), for the limited purposes set forth in Section 2 ("Use of Website") and subject to the restrictions set forth in Section 3 ("Restrictions").
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Use of Website.
(a) You may access and use the Website and the Software solely for the purposes of (i) authoring digital content (each a "Presentation") for distribution on the website (ii) viewing third party Presentations; (iii) using other features and functionality made available to you from time to time on the Website, (iv) purchasing view access to third party Presentations for your personal use, and/or (v) licensing copies of certain third party Presentations for use within your organization, provided the integrity of the content of such Presentation, including the expression and organization of the Presentation, is preserved in its whole. Presentations may include information, data, text, music, sound, photographs, graphics, video, messages and/or other materials owned or licensed by third-party content providers ("Learning Providers");
(b) You affirm that you are at least 18 years of age or otherwise possess legal parental or guardian consent to enter into and abide by these Terms of Use.
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Restrictions.
You agree that you will not:
(a) share your logon ID, user name or password with any other party;
(b) copy, distribute, sell, resell, give away, or provide access to Presentations or the Website to the general public, including, without limitation, as an application service provider, service bureau or hosting services provider,
(c) rent, lease, loan, or time-share Presentations or the use of, or access to, the Website;
(d) copy, modify, adapt, reverse-engineer or create derivative works of the Software;
(e) use the Website to upload, post, email or otherwise transmit any content or material that is unlawful, harmful, threatening, abusive, harassing, tortuous, vulgar, indecent, obscene, pornographic, defamatory, invasive of another's privacy or rights of publicity, hateful, or racially, ethnically or otherwise offensive or objectionable, harmful to minors, infringing of another’s proprietary rights, including, without limitation, copyrights, trademarks, patents and trade secrets, or damaging, corruptive or otherwise in any way harmful to the Website such as but not limited to viruses, including any software, hardware or services associated with the Website;
(f) use the communication systems available on the Website (e.g., posting comments, email) to further or make available any unsolicited or unauthorized advertising or promotional materials such as junk mail, spam, chain letters, pyramid schemes or any other form of commercial solicitation; or.
(g) harvest or collect personally identifiable information from the Website for any reason.
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Ownership and Protection of Content and Intellectual Property.
(a) Brainshark Intellectual Property. Brainshark or Brainshark’s licensors retain all ownership of, and intellectual property rights in, the Software and the Website. Except for the limited license granted to you herein, you have no right, title or interest in the Software or the Website. All rights not expressly granted herein are reserved to Brainshark, including the right to charge a fee for access or use of the Website;
(b) Intellectual Property in Presentations. ownership of, and intellectual property rights in, any unmodified Presentation, are owned exclusively by the Learning Provider who published such Presentation. Any permitted modification of the Presentation is owned by the party making the modification to the Presentation, provided ownership of the unmodified Presentation remains with the Learning Provider. You may not remove any identifications, attributions, copyright notices, or other notices or proprietary restrictions contained in any Presentation.
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Terms Applicable to Learning Providers.
If you are a Learning Provider and provide Presentations you must agree to the terms and conditions of the Learning Provider Agreement prior to uploading your Presentations to the Website.
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Content of Presentations; Other Content.
You acknowledge that Brainshark does not pre-screen, monitor or endorse any Presentations or other content or materials on the Website and makes no claims regarding their accuracy or content. Brainshark or its designees have the right (but not the obligation) in their sole discretion to refuse or remove any such Presentations or other content.
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Availability of the Website.
Brainshark will use commercially reasonable efforts to ensure that the Website is accessible via the internet twenty-four (24) hours a day, seven (7) days a week.
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Disclaimer of Warranties.
THE WEBSITE AND THE PRESENTATIONS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. BRAINSHARK DOES NOT WARRANT (I) THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE OR THE WEBSITE WILL MEET YOUR REQUIREMENTS, (II) AN UNAUTHORIZED PERSON WILL NEVER GAIN ACCESS TO THE CUSTOMER CONTENT OR PRESENTATIONS, (III) THAT THE SOFTWARE OR THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, OR (IV) THE ACCURACY, ADEQUACY OR COMPLETENESS ANY PRESENTATION.
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Limitation of Liability.
BRAINSHARK SHALL NOT BE LIABLE, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT, TORT OR BASED ON ANY OTHER LEGAL THEORY, IN ANY WAY TO YOU FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT. BRAINSHARK'S MAXIMUM LIABILITY FOR ANY DAMAGES, REGARDLESS OF FORM OF ACTION, SHALL NOT EXCEED THE LICENSE FEES, IF APPLICABLE, ACTUALLY PAID BY YOU TO BRAINSHARK FOR USE OF THE WEBSITE, OR OTHER AMOUNTS ACTUALLY PAID BY YOU PROCURING PRESENTATIONS USING THE WEBSITE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVEN RISE TO SUCH LIABILITY.
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Termination of Use of Website.
You may terminate your use of the Website at any time by terminating any agreements, if applicable, between you and Brainshark associated with your use of the Website and/or discontinuing your access of the Website and destroying your access credentials (e.g., logon ID, password).
Brainshark may terminate your account with immediate effect for breach of any term or condition of these Terms of Use, or may generally discontinue the availability of the Website, without notice to you and without any liability to you.
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Notice of Copyright Infringement.
If you believe in good faith that (i) a Presentation or other content or material on the Website infringes your copyrights, or (ii) any such notice of infringement was made falsely or mistakenly against your Presentation or other content or material on the Website, you may provide notice to Brainshark’s Designated Agent for Notice of Infringement identified below. Brainshark, Inc.
Attention: Brainshark, myBrainshark Product Director
130 Turner Street
Building 1, Suite 100
Waltham, MA 02453.
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Interpretation, Execution and Modification.
Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The parties agree that the subject matter of these Terms of Use will be governed by the laws of the Commonwealth of Massachusetts and, to the extent applicable, the federal laws of the United States. No failure of either party to exercise or enforce any of its rights under these Terms of Use will act as a waiver of such rights. If any provision of these Terms of Use is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions will remain in force. These Terms of Use may be modified by Brainshark at any time without notice.